:Kty  of 

n! II 


v.- 


u 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


PROPERTY  OF 

LINCOLN  COUNTY 
NEW  MEXICO 


CODE  PLEADING 


AS 


INTERPRETED 


BY  THE 


COURTS  OF  MISSOURI 


BY 

EVERETT  W  PATTISON 

Of  the  St.  Louis  Bab 


ST.  LOUIS,  MO. 

THE  GILBERT  BOOK  COMPANY 

1901 


Copyright,  1901, 

BY 

EVERETT  W.  PATTISON. 


fyc/** 


STATE  JOURNAL  PRINTING  COMPANY, 

Printers  and  Stereotypers, 

MADISON,  wis. 


i 


PEEFACE. 


Few  men  have  entered  the  profession  with  stronger  prejudices 
against  the  code  system  of  pleading  than  I.  My  law  studies  were 
pursued  under  the  guidance  of  one  trained  in  the  common-law 
practice,  and  I  had  become  thoroughly  imbued  with  a  belief  in 
its  surpassing  excellence.  But  in  the  course  of  a  practice  extend- 
ing through  more  than  thirty-five  years,  I  have  been  brought  to 
see  the  advantages  of  the  present  simple,  but  absolutely  logical, 
system,  and  am  fully  converted  to  the  belief  that  under  that  sys- 
tem, rather  than  by  the  common-law  methods,  the  nearest  ap- 
proximation to  absolute  justice  is  to  be  attained.  I  am  convinced 
that,  if  the  rules  of  pleading  and  practice  which  are  contained  in 
the  Missouri  statutes  are  faithfully  administered,  this  result  will 
follow.  I  am  equally  convinced  that  any  attempt  to  blend  the 
old  system  with  the  new  can  result  only  in  confusion  and  detri- 
ment. With  these  convictions  1  have  undertaken  this  work  on 
Pleading.  My  earnest  hope  is  that  it  may  tend,  in  some  degree 
at  least,  to  hasten  the  advent  of  the  day  when  the  Code  will  be 
cordially  accepted  by  both  bench  and  bar  for  what  it  is  intended 
to  be  —  the  one  and  only  rule  of  practice  in  our  courts.  The 
principles  upon  which  the  reformed  procedure  are  based  are 
clearly  set  forth  in  the  Keports  of  the  New  York  Codifiers  —  a 
series  of  reports  which  it  will  well  repay  any  lawyer  to  read. 

While  this  work  is  primarily  designed  for  the  practitioner,  I 
have  endeavored  to  adapt  it  to  the  needs  of  the  law  student  also, 
and  trust  it  may  be  found  useful  in  connection  with  the  study  of 
Pleading.  Nothing  is  more  important  for  the  law  student,  and 
the  remark  applies  as  well  to  the  practitioner,  than  that  he  be 
well  grounded  in  the  rules  and  underlying  principles  of  pleading. 
He  should  read  and  re-read  this  volume,  until  he  becomes  thor- 
oughly familiar  with  the  lessons  to  be  drawn  from  the  decided 


iV  PREFACE. 

cases.  And  I  venture  the  prediction  that  he  who  adopts  the  habit 
of  carefully  studying  the  book  at  least  once  in  each  year  will  be 
the  one  who  will  have  the  advantage  which  necessarily  conies 
from  accurate  and  scientific  pleading. 

It  is  proper  to  state  that  in  a  very  few  instances  I  have  cited 
cases  which  originated  before  a  justice  of  the  peace,  for  the  rea- 
son that  the  principle  involved  in  them  was  equally  applicable 
to  cases  originally  instituted  in  a  court  of  record. 

Everett  W.  Pattison. 
St.  Louis,  March  1, 1901. 


TABLE  OF  CONTENTS. 


Page. 

Preface i" 

Introductory  chapter 17 

Chapter. 

L  Legal  and  equitable  proceedings 25 

IL  Avoiding  circuity  of  action 32 

IIL  General  rules  governing  pleading 46 

IV.  What  should  be  stated  in  pleading 56 

V.  Same  subject  —  Pleading  and  proof 66 

VL  Same  subject  —  Only  facts  are  to  be  pleaded 80 

VII.  Same  subject  —  Conclusions  of  law  should  not  be  pleaded  ...     88 
VIII.  Application  of  the  above  rules  to  specific  cases  and  issues ....  105 

IX.  Construction  of  pleadings Ill 

X  Joining  causes  of  action 127 

XL  The  petition 140 

XII.  The  petition  —  Multifariousness 148 

XIII.  The  petition  —  Stating  the  cause  of  action 155 

XIV.  The  prayer  for  relief 177 

XV.  The  rules  governing  petitions  applied  to  various  issues  and 

proceedings 190 

XVL  The  rules  applicable  to  bills  in  equity 255 

XVIL  Exhibits 261 

XVIIL  Defendant's  pleadings 269 

XIX  The  answer 272 

XX.  Same  subject  —  The  denial 282 

XXI.  What  may  be  shown  under  a  general  denial 290 

XXIL  The  rules  as  to  what  may  be  shown  under  a  general  denial 

applied  to  specific  issues  and  proceedings 299 

XXIII.  New  matter  in  the  answer 324 

XXIV.  Counter-claim  and  set-off 328 

XXV.  The  answer  —  Denial  under  oath 357 

XXVL  The  foregoing  rules  governing  answers  applied  to  various  is- 
sues and  proceedings 363 

XXVII.  Pleas  in  abatement 382 

XXVIII.  The  reply 389 

XXIX  Rules  governing  interpleas. 403 

XXX.  Abandoned  pleadings 405 

XXXI.  Attacking  pleadings 407 

XXXIL  The  demurrer 416 

XXXIII.  Motion  to  make  definite  and  certain 434 

XXXIV.  Motion  to  strike  out 438 

XXXV.  Motiontoelect 441 

XXXVL  How  defects  in  pleading  may  be  waived 444 


VI  TABLE   OF    CONTENTS. 

Chapter.  Tape. 

XXX  VII.  How  they  may  be  cured 452 

X  X  X  VIII.  Defects  cured  by  verdict  or  judgment 456 

XXXIX.  Specific  cases  in  which  the  defects  have  been  held  to  be  cured 

by  the  verdict  or  judgment 464 

XL.  Amending  pleadings 475 

XLI.  Same  subject —  Adding,  dropping  or  changing  parties 484 

XLIL  The  amendment  must  not  change  the  cause  of  action 492 

XLIIL  The  stage  of  the  proceeding  at  which  an  amendment  may  be 

allowed 504 

XLIV.  Effect  of  amending  — Terms 516 


MISSOURI  CODE  PLEADING. 


INTRODUCTORY  CHAPTER 

The  Code  of  practice  constitutes  a  radical  departure  from  the 
common-law  procedure.  It  is  not  a  modification,  not  even  a  re- 
formation. It  creates  a  new  system.  It  was  designed  to  abolish 
old  rules,  old  methods,  old  technicalities,  and  to  establish  a  new 
method  of  procedure,  adapted  to  the  plain  and  simple,  but  pro- 
gressive, habit  of  American  thought.  It  does  not  aim  to  cure 
the  evils  of  the  common-law  practice.  It  is  designed  to  wipe  out 
altogether  that  practice,  and  substitute  one  entirely  new.  As  is 
said  by  Sherwood,  J.,  in  Elf  rank  v.  Seller: l  "  Our  statute  respect- 
ing practice  in  civil  cases  has  worked  a  radical  change  in  the 
rules  of  pleading  which  formerly  prevailed  when  the  common  law 
had  sway;  and  now,  instead  of  being  decided  by  Chitty, the  suf- 
ficiency of  the  pleading,  except  where  otherwise  specially  pro- 
vided, is  to  be  measured  by  our  practice  act.  And  by  reason  of 
such  change  many  trips  and  false  steps,  which  under  the  old 
regime  would  have  proved  fatal,  are  matters  of  no  moment." 
(p.  136.) 

Yet  it  would  be  too  much  to  expect  that  judges  and  lawyers, 
who  had  been  trained  under  the  common  law,  and  who  knew  no 
other  practice,  who  had  been  taught  to  look  upon  that  system, 
with  all  its  defects,  as  summum  bonum,  would  willingly  accept 
its  complete  overthrow.  Especially  ought  one  not  to  expect  that 
they  would  readily  acquiesce  in  a  change  which,  so  far  as  it  af- 
fects parties  and  pleadings  and  mere  forms,  tends  to  eliminate 
the  distinctions  between  legal  and  equitable  proceedings.  The 
whole  tendency  of  the  mental  training  of  the  profession  at  the 
time  the  Code  was  first  launched  in  New  York  was  such  as  to 
lead  them  to  consider  such  a  statute  one  in  derogation  of  the 
common  law,  and  hence  to  give  it  effect  only  so  far  as  it  was  un- 
questionably inconsistent  with  the  common  law.    To  quote  again 

,T     n         r>        o  154Mo.  134. 

Mo.  Code  Pl.—  2 


IS  INTRODUCTORY    OIIArTER. 

from  Judge  Sherwood:  "It  is  a  fact,  it  would  seem,  not  gener- 
ally recognized,  that  we  have  in  this  state  a  code;  that  by  that 
code  are  provided  the  forms  of  all  pleadings,  and  the  rules  by 
which  they  are  to  be  tested. "' ' 

In  no  one  particular  is  the  unwillingness  of  courts  to  depart 
from  the  old  rules  more  signally  manifest  than  in  the  ruling  as 
to  the  necessity  of  a  promise  in  actions  in  the  nature  of  assumpsit. 
The  general  rule  at  the  common  law  was  that  a  promise  must  be 
averred  in  such  cases.  In  fact  it  was  this  element  of  a  promise 
which  constituted  the  action  of  assiim_psit,  and  differentiated  it 
from  other  actions,  such  as  that  in  debt.  It  was  not  necessary 
that  the  promise  should  in  fact  have  been  made.  In  almost  every 
instance  it  was  not  made.  It  was  a  pure  fiction  of  the  law.  But 
it  must  nevertheless  have  been  pleaded  as  made.  This  promise 
was  in  the  fullest  sense  of  the  term  a  conclusion  of  law.  Under 
the  code  system,  which  precludes  the  pleading  of  conclusions  of 
law,2  it  had  no  place  in  the  petition.  And  this  is  so  held  by  the 
Kansas  City  court  of  appeals  in  First  National  Bank  v.  Landis? 
But,  as  will  be  seen  when  I  come  to  the  discussion  of  this  point 
in  the  chapter  on  The  Petition  (ch.  15,  §  343),  the  weight  of  au- 
thority in  this  state  is  that  the  promise  must  be  pleaded,  all  the 
appellate  courts  having  so  decided. 

Had  the  Code  been  accepted  for  what  it  was,  an  entirely  new 
mode  of  practice,  based  upon  a  theory  radically  distinct  from 
that  out  of  which  the  common-law  procedure  grew,  it  would  have 
speedily  developed  into  a  simple,  harmonious  and  symmetrical 
system.  For  the  common-law  practice  was  based  upon  the  theory 
that  form  was  essential.  The  Code  is  based  upon  the  theory 
that  form  is  of  not  the  slightest  consequence.  If  the  pleader 
states  his  cause  of  action  or  his  defense  concisely,  in  language 
that  a  man  of  ordinary  intelligence  can  understand,4  and  so  states 
either  that  the  adverse  party  can  never  again  be  called  upon  to 
answer  to  it,  he  has  complied  with  its  behests.  The  keynote 
to  code  pleading  is  simplicity.     It  requires  "a  plain  and  concise 

1  Pomeroy  v.  Benton,  57  Mo.  531,  550.  in  such  a  manner  as  to  enable  a  per- 

2  Rev.  Stat.  1899,  sees.  610,  631.  sonof  common  understanding  to  know 

3  34  App.  433.  what  is  intended."    (Laws  1849,  p.  79, 

4  The  Code  as  first  enacted  in  this  sec.  7.)  While  this  clause  has  been 
state  contained  after  the  words  "a  omitted  in  the  various  revised  statutes, 
plain  and  concise  statement  of  the  it  nevertheless  shows  the  intent  of 
facts,'' etc.,  the  following  clause:  "and  the  law-maker. 


INTRODUCTORY   CHAPTER.  19 

statement  of  the  facts."  But  that  is  absolutely  all  that  it  re- 
quires.1 

It  is  a  logical  conclusion  that  the  effect  of  this  change  in  pro- 
cedure is  to  abolish  all  differences  between  legal  and  equitable 
causes  of  action,  except  so  far  as  such  distinction  is  inherent  in 
the  primary  rights  and  duties  to  be  enforced,  and  so  far  also  as 
the  distinction  is  requisite  to  the  determination  of  the  mode  of 
trial.  In  other  words,  there  is  in  Missouri  but  one  method  of 
pleading.  And  therefore  the  Code,  when  properly  administered, 
and  when  its  principles  are  faithfully  followed,  tends  necessarily 
to  create  simplicity.  That  this  conclusion  as  to  legal  and  equita- 
ble proceedings  has  not  been  fully  accepted  by  the  courts,  will 
appear  hereafter.  But  that  such  is  the  logical  conclusion  can- 
not, I  think,  be  gainsaid.  And  that  our  judges  are  rapidly  com- 
ing to  acknowledge  the  radical  nature  of  the  change  effected  by 
the  Code  is  equally  apparent.  The  occasional  exception  only 
emphasizes  the  prevalence  of  the  rule.  Our  supreme  court  has 
recently  said  that  the  object  of  all  judicial  proceedings  should 
be  the  attainment  of  right  and  justice,  and  that  in  courts  of 
equity  the  rules  of  procedure  admit  of  greater  flexibility  to  ac- 
complish this  object  than  the  more  strict  rules  of  law.2  Is  it 
not  a  reasonable  conclusion  that  the  object  of  the  Code  in  abol- 
ishing the  distinction  between  legal  and  equitable  proceedings, 
so  far  as  concerns  questions  of  form,  and  leaving  those  distinc- 
tions in  existence  in  matters  of  substance  only,  was  that  all  pro- 
ceedings, whether  formerly  designated  as  legal  or  as  equitable, 
should  possess  the  flexibility  formerly  attached  only  to  equitable 
proceedings  ? 

As  showing  the  gradual  change  in  the  views  of  our  courts, 
both  as  to  the  intent  and  as  to  the  effect  of  the  new  procedure, 

1  In  the  words  of  Mr.  Pomeroy :  "The  tice  and  pure  morality.  We  have  now- 
fundamental  conceptions  embodied  in  reached  the  stage  when,  by  an  act  of 
the  American  system  are  natural  and  legislation,  our  judicial  proceedings 
true.  They  are  in  perfect  accord  with  have  in  theory  at  least  been  made 
the  experience  of  mankind  as  shown  simple,  when  natural  methods  have 
in  the  history  of  legal  development  taken  the  place  of  the  artificial,  when 
from  an  infancy  of  rude  barbarism  to  the  sole  object  of  a  forensic  trial  is  to 
a  maturity  of  enlightened  civilization,  arrive  directly  at  the  truth,  and  when 
The  whole  course  of  such  development  the  search  after  the  truth  is  not  con- 
consists  in  disregarding  rules,  modes,  fined  to  any  prescribed  forms  nor 
and  institutions,  which  were  arbitrary  shut  up  between  any  rigid  barriers." 
and  formal,  and  in  bringing  the  law  2  Haseltine  v.  Smith,  154  Mo.  404. 
into  an  agreement  with  abstract  jus- 


20  INTRODUCTORY    CHAPTER. 

I  give  some  extracts  from  early  and  later  opinions  of  the  appel- 
late courts.  In  Edgell  v.  Sigerso?i l  it  is  said :  "  The  common-law 
definition  of  a  pleading  is,  'the  statement  in  a  logical  and  legal 
form  of  the  facts  which  constitute  the  plaintiff's  cause  of  action 
or  the  defendant's  ground  of  defense,'  which  is  the  very  language 
used  by  pur  code  in  denning  a  complaint  and  answer.  Facts, 
and  facts  only,  are  to  be  stated.  The  pleader  must  not  descend 
into  a  mere  detail  of  the  evidence,  nor  stop  short  at  general  con- 
clusions of  law,  but  must  set  down  the  issuable  facts  and  them 
only.  This  is  the  language  of  both  systems,  but  it  must  be  under- 
stood according  to  the  necessities  of  the  case  to  which  it  is  ap- 
plied. No  system,  it  is  believed,  was  ever  yet  put  in  practice  in 
which  the  ultimate  facts,  as  they  actually  took  place,  constitut- 
ing the  cause  of  action  or  ground  of  defense,  were  in  all  cases, 
without  exception,  required  to  be  set  forth.  It  would  be  utterly 
impracticable  to  do  so.  Indeed,  perhaps  the  greater  portion  of 
the  matters  stated  in  pleadings  are  the  legal  results  of  what  act- 
ually occurred,  rather  than  the  occurrences  themselves  as  they 
transpired ;  and  this  is  so  much  the  case  that  it  has  been  said  these 
ultimate  results  are  the  true  issuable  facts,  and  constitute  the 
only  proper  objects  of  averment  in  pleading."     (p.  496.) 2 

As  an  instance  of  a  broader  view,  I  quote  from  an  opinion 
written  by  the  late  Judge  Lewis,  when  he  was  presiding  judge 
of  the  St.  Louis  court  of  appeals,  which  contains  an  interest- 
ing discussion  of  the  radical  change  which  the  new  system  has 
introduced.     After  remarking  on  the  difficulty  which  the  profes- 

1 20  Mo.  494.  the  statement  of  the  legal  results,  not 

2  It  may  not  be  improper  for  me  to  of  facts  which  actually  occurred,  but 

suggest  that  this  extract  from  the  su-  which  by  legal  fiction  were  assumed 

preme  court's  opinion  is  the  key  to  to  have  occurred.    It  is  certainly  very 

much  confusion  which  has  arisen  in  far  from  true  that  in  the  common-law 

the  decisions  of  our  courts,  though  it  forms  of  action  facts  were  always 

is  by  no  means  confined  to  our  courts,  stated  as  they  occurred.     It  is  prob- 

but  will  be  found  in  the  decisions  of  ably  true  that  such  facts  were  seldom 

all  the  code  states.    What  the  learned  so  stated.     On  the  contrary,  what  the 

judge    says  is  true  of  common-law  Code  requires  —  and  the  requirement 

pleading;  but  it  ought  not  to  be  true  is  absolute  and  without  exception  — 

of  pleadings  under  the  Code.    Many  is,  that  the  pleader  shall  in  all  cases 

of  the  forms  of  common-law  actions,  state  the  constitutive  facts  exactly  as 

as  settled  by  a  long  series  of  decisions,  they  occurred,  and  shall  state  them 

absolutely  require  the  statement  of  in  plain  and  concise  language  with- 

"the  legal  results  of  what  actually  out  technicality,  and  free  from  mere 

occurred."    In  fact,  one  may  safely  conclusions  of  law. 
go  farther  and  say  that  they  require 


INTRODUCTORY    CHAPTER.  21 

sion  experiences  in  getting  rid  of  the  dogmas  which  upheld  the 
common-law  system  of  pleading,  he  proceeds  as  follows:  "Some 
of  those  dogmas  are  not  merely  ignored  but  are  absolutely  re- 
versed in  the  modern  code  practice.  The  earliest  conceptions  of 
practical  jurisprudence  made  the  writ,  or  the  form  of  approach  to 
the  temple  of  justice,  the  grand  central  idea  upon  which  every- 
thing else  depended.  It  was  defined  by  the  sovereign  authority 
and  tendered  to  the  subject  to  be  used  only  when  he  could  show 
his  matter  of  grievance  to  be  within  its  exact  terms.  If  he  failed 
of  such  a  showing  —  if  he  mistook  by  a  hair's  breadth  in  choos- 
ing between  two  different  writs  or  forms, —  the  doors  of  the  tem- 
ple were  promptly  closed  against  him,  whatever  might  be  the 
claims  of  abstract  justice  as  between  him  and  his  adversary.  In 
the  growing  complications  of  human  affairs  it  sometimes  hap- 
pened that  a  great  and  manifest  wrong  was  committed  by  one  per- 
son against  another,  and  yet  the  sufferer  could  find  no  redress  be- 
cause a  writ  had  not  yet  been  invented  to  cover  just  such  a  case. 
This  led  to  the  occasional  introduction  of  a  new  writ  or  form  of 
action ;  but  not  until  the  reign  of  Edward  I.  was  a  general  au- 
thority given  by  statute  for  the  framing  of  new  writs  for  cases 
not  falling  within  the  scope  of  those  already  in  use.  Thus,  juris- 
diction was  shaped  by  the  remedy  and  not  by  the  grievance. 
All  of  which  is  in  striking  contrast  with  the  code  system,  wherein 
the  jurisdiction  looks  first  of  all  to  the  fact  of  grievance  demand- 
ing redress;  and,  asking  no  questions  about  the  particular  form 
in  which  the  demand  is  made,  declares  that  one  form  —  the  civil 
action  —  shall  suffice  for  any  and  every  case  wherein  the  grievance 
and  the  right  of  redress  shall  plainly  appear.  It  resulted  from 
the  pre-eminence  given  in  the  old  system  to  an  exact  conformity 
with  the  writ,  that  a  misjoinder  of  counts  in  the  declaration  was 
fatal  to  the  action  at  whatever  stage  it  might  first  be  discovered. 
It  destroyed  the  foundation.  The  whole  structure  must  there- 
fore fall.  The  objection  could  be  raised  with  fatal  effect  by  a 
motion  in  arrest  or  even  upon  a  writ  of  error.  The  new  system 
prescribes  certain  exact  rules  for  the  joining  of  various  causes  of 
action  in  the  same  petition,  but  for  very  different  reasons  and 
with  very  different  penalties  for  their  violation.  A  misjoinder 
involves  no  incongruous  admixture  of  forms  or  of  writs,  because 
there  is  but  one  form  and  but  one  writ  for  all  possible  cases. 
There  is  no  reason  why  it  should  be  fatal  to  the  action,  per  se, 
and  the  law  does  not  declare  it  so.  A  cause  of  action  ex  delicto 
must  not  be  united  with  one  ex  contractu;  but  why  ?   The  statute 


INTRODUCTORY   CHAPTER.  , 

forbids  it ;  and  if  a  reason  for  the  statute  must  be  found,  it  seems  to 
appear  in  the  policy  which  refuses  to  subject  a  defendant,  against 
his  will,  to  diverse  styles  of  warfare  in  the  same  fight.  Hence 
it  is  provided  that  he  may  nevertheless  waive  all  such  objections 
by  refusing  to  demur.  If  he  accepts  the  fight  as  tendered  the 
law  will  not  permit  him  afterwards  to  object,  nor  will  it  find 
that,  by  roason  of  the  misjoinder,  the  foundation  of  the  action  is 
insufficient  to  sustain  it.  The  statute  is  explicit  that,  if  the  ob- 
jection of  misjoinder  be  not  raised  by  demurrer  or  answer,  it 
shall  be  deemed  to  be  waived." l 

In  a  still  more  recent  case  it  is  said  by  Barclay,  J.:  "A  radi- 
cal change  in  the  forms  of  pleading  was  a  corner-stone  in  the 
proposed  reform."2 

An  interesting  instance  of  adherence,  even  in  modern  times,  to 
common-law  rules,  notwithstanding  the  provisions  of  the  Code, 
is  found  in  Donahue  v.  Bragg?  In  that  case  it  was  urged  by  de- 
fendant that  the  causes  of  action  on  which  several  plaintiffs  had 
brought  suit  were  several  and  not  joint,  and  it  is  said  that,  while 
the  point  is  technical,  and  does  not  affect  the  equitable  merits  of 
the  controversy,  yet  if  well  taken  it  must  necessarily  lead  to  a 
reversal  of  the  judgment  by  the  appellate  court,  because  it  is  an 
elementary  proposition  that  parties  having  several  rights  against 
the  same  defendant  cannot  enforce  them  in  a  joint  action  against 
him  if  he  objects,  (p.  274.)  Yet  we  have  a  provision  in  this 
state  that  a  "  judgment  may  be  given  for  or  against  one  or  more 
of  several  plaintiffs." 4 

I  have  already  adverted  to  the  ruling  as  to  the  necessity  of 
pleading  a  promise,  even  where  the  promise  is  a  mere  fiction  of 
law.5  In  what  I  cannot  consider  other  than  a  like  disregard  of  the 
mandate  of  the  Code,  our  courts  also  hold  that  it  is  still  per- 
missible to  frame  a  petition  for  money  had  and  received  in  accord- 
ance with  the  common-law  form.6 

1  desire,  however,  to  impress  upon  the  reader  that  the  change 
introduced  by  the  Code  does  not  go  to  the  extent  of  requiring 
less  or  more  material  allegations  in  a  petition  than  were  neces- 
sary to  constitute  a  cause  of  action  at  common  law,  but  only 
obviates  the  necessity  of  using  those  formal  and  technical  aver- 

i  Sumner  v.  Tuck,  10  App.  269,  27G.  8Page  18,  ante. 

2  Stillwell  v.  Hamm,  97  Mo.  579,  585.  6  Pipkin  v.  National  Loan  Ass'n,  80 

3  49  App.  273.  App.  1. 
«  Rev.  Stat.  1899,  sec.  767. 


INTRODUCTORY    CHAPTER.  23 

ments  which  were  necessary,  and  for  which,  under  the  rules  of 
the  common  law,  no  other  mode  of  stating  the  same  thing  could 
be  substituted.1  Pleading  under  the  Code  has  nothing  to  do  with 
the  old  forms  of  procedure.2  If  the  rules  of  the  common  law  were 
designed  to  apprise  the  parties  of  what  is  affirmed  or  claimed 
upon  the  one  side,  and  what  is  denied  on  the  other,  these  rules 
have  been  broadened  and  deepened  by  the  Code.3 

As  illustrating  these  rules,  take  the  case  of  goods  sold  to  be 
paid  for  by  note  or  bill.  At  common  law  if  the  purchaser  failed 
to  give  the  note  or  bill,  the  vendor  could  not  maintain  assump- 
sit on  the  general  count  for  goods  sold  and  delivered  until  the 
time  had  expired  for  which  the  note  or  bill  was  to  run ;  but  he 
might  immediately  bring  an  action  for  breach  of  the  special 
agreement,  and  his  damages  would  be  the  price  of  the  goods. 
Inasmuch  as  the  Code  abolishes  the  old  forms  of  action,  a  peti- 
tion is  good  if  such  facts  appear  in  it  as  would  justify  a  judgment 
at  common  law  under  either  of  the  above  forms  of  action.2 

One  of  the  purposes  of  the  Code  is  to  substitute  specific  and 
concise  statements  of  the  actual  facts  of  each  controversy  for  the 
more  general  declarations  of  demands  formerly  in  use  in  courts 
of  law,  and  the  unnecessarily  prolix  and  elaborate  pleadings  in 
chancery.  The  object  in  view  is  to  have  the  defendant  fully  ad- 
vised in  each  case  of  the  precise  complaint  he  is  called  upon  to 
meet.4  A  petition  may  be  in  artificially  and  clumsily  drawn,  and 
may  even  be  incoherent,  yet  if,  taken  altogether,  it  states  a  cause 
of  action,  it  is  sufficient.5  And  such  a  petition  is,  unless  objec- 
tion to  it  is  made  either  by  demurrer  or  answer,  as  valid  to  all 
intents  and  purposes  as  though  prepared  by  the  most  skilful 
hand.6  Thus,  in  Battel  v.  Crawford,1  the  supreme  court  uses  this 
language :  "  The  petition  is  extremely  inartificial,  but  it  con- 
tains the  substance  of  a  good  complaint.  The  conversion  by  the 
defendant  of  the  special  deposit  is  substantially  alleged;  and 
while  the  petition  is  lacking  in  formality  and  precision,  yet  in 
view  of  the  duty  imposed  by  statute  to  distinguish  between  form 
and  substance,  we .  think  we  would  be  manifesting  a  fastidious 

i  Conway  v.  Reed,  66  Mo.  346;  Sum-  »  Lynch  v.  St.  Joseph  &  S.  R.  Co.,  Ill 

ner  v.  Tuck,  10  App.  269,  276.  Mo.  601;  Putnam  v.  Hannibal  &  St. 

2  Globe  Light  &  Heat  Co.  v.  Doud,  J.  R.  Co.,  22  App.  589;  State  ex  rel.  v. 

47  App.  439.  Carroll,  63  Mo.  156. 

sMellor  v.  Mo.  Pac.  R.  Co.,  105  Mo.  6  Elf  rank  v.  Seiler,  54  Ma  134, 

455.  1  59  Mo.  215. 

*  Rush  v.  Brown,  101  Mo.  586,  590. 


2  [  INTRODUCTORY    CHAPTER. 

regard  for  exactness  in  pleading,  without  precedent  since  the 
adoption  of  the  Code,  were  we  to  turn  the  plaintiff  out  of  court 
on  this  point." 

At  common  law  different  attachment  creditors  could  not  sue 
jointly  to  set  aside  a  fraudulent  conveyance  made  by  the  debtor 
in  the  attachment.  Nor  could  they  maintain  such  a  suit  in  equity. 
Under  the  provisions  of  the  Code,  however,  this  may  be  done.1 
But  when  several  creditors  so  join  as  plaintiffs,  the  petition  must 
set  out  all  the  facts  which  under  the  statute  give  them  the  right 
to  maintain  a  joint  suit.2 

In  closing  this  chapter  it  may  not  be  amiss  to  suggest  to  those 
persons  who  still  think  the  common-law  practice  and  methods 
of  procedure  the  ultima  thule  of  human  wisdom,  and  who  still 
mourn  for  the  ancient  system,  that  these  common-law  methods 
and  forms  have  been  abrogated  in  Great  Britain,  and  that  there 
has  been  adopted  in  that  country  what  is  practically  the  Ameri- 
can Code  system  —  a  fact  which  is  in  itself  a  full  and  significant 
vindication  of  the  course  taken  by  the  Code  states  of  this  coun- 
try. No  one  will  dispute  the  assertion  that  neither  the  bench 
nor  the  bar  of  England  would  willingly  return  to  the  old  method. 

i  Rev.  Stat.  1899,  sec.  416.  2  Bruniley  v.  Golden,  27  App.  160. 


CHAPTER  I. 

LEGAL  AND  EQUITABLE  PROCEEDINGS. 


1.  How  far  they  are  now  distinct. 

3.  The  extent  of  the  change. 

4.  Illustrative  cases. 

5.  Flexibility  of  proceeding. 

6.  Bills  of  discovery  abolished. 


5  7.  The  answer  in  chancery. 
8.  Effect  of  pleading  an  equitable 
defense. 

12.  Cases  illustrating  the  above  prin- 
ciples. 


§  1.  How  far  they  are  now  distinct.—  The  Missouri  Code  does 
not  in  terms  abolish  the  distinction  between  actions  at  law  and 
suits  in  equity.  But  when  it  provides  that  there  shall  be  in  this 
state  but  one  form  of  action  for  the  enforcement  or  protection  of 
private  rights,  and  the  redress  or  prevention  of  private  wrongs,1 
it  certainly  abolishes  all  formal  distinctions  between  the  two 
classes  of  suits,  since  the  words  "  protection  "  and  "  prevention  " 
refer,  if  not  exclusively,  at  all  events  in  large  part,  to  equitable 
proceedings.  And  when  it  refers  to  legal  and  equitable  proceed- 
ings by  using  the  expression  "  heretofore  denominated  legal  or 
equitable,"  as  it  does  in  section  593  and  section  605,2  there  is 
manifested  an  intention  to  carry  the  distinction  sufficiently  far  to 
make  it  apply  to  all  matters  excepting  those  of  substance.  The 
phrase  "  legal  or  equitable  procedure  "  may  be  used  in  reference 
to  the  jurisdiction  at  law  and  that  in  equity,  or  it  may  refer  to 
the  distinction  between  the  practice  in  actions  at  law  and  in  suits 
in  equity.  From  a  failure  to  discriminate  between  the  equitable 
jurisdiction  and  the  equitable  practice,  when  speaking  of  the  two 
classes  of  actions,  some  confusion  has  arisen.  In  reference  to  the 
principles  which  underlie  equitable  and  legal  jurisprudence,  the 
distinction  still  subsists.  For,  in  what  Mr.  Pomeroy  designates 
the  "  primary  rights  and  duties,"  the  rules  distinguishing  equita- 
ble from  legal  proceedings  cannot  be  abrogated.  It  is  only  in  the 
modes  of  procedure  that  the  Code  has  effected  a  change,  and  this 
change  does  not  cover  the  procedure  in  its  entirety.  At  least 
our  courts  so  held  in  their  early  interpretation  of  the  Code,  it 
being  declared  that  the  practice  act  does  not  confound  law  and 


i  Rev.  Stat,  1899,  sec.  539. 


2  Rev.  Stat.  1899. 


26  LEGAL   AND   EQUITABLE   PROCEEDINGS.  [§§  2,  3. 

equity,  either  as  to  principles  or  modes  of  procedure,1  and  that 
the  court  cannot  exert  its  equitable  powers  in  a  strictly  legal  ac- 
tion.2 But  so  far  as  mere  form  is  concerned,  there  is  no  question 
that  all  distinctions  have  been  removed. 

§  2.  Says  the  court  in  Mag  wire  v.  Tyler: 3  "  Cases  legal  and  equi- 
table have  not  been  consolidated.  Although  there  is  no  differ- 
ence between  the  form  of  the  bill  in  chancery  and  the  common- 
law  declaration  under  our  system,  where  all  relief  is  sought  in 
the  same  way  from  the  same  tribunal,  the  distinction  between 
law  and  equity  is  as  naked  and  as  broad  as  ever."  (p.  128.)  And 
again  it  is  said:  "The  new  practice  act  of  1849  in  a  measure  as- 
similated the  forms  of  proceedings  in  cases  at  law  and  in  equity." 4 
That  all  distinction  between  the  forms  of  actions  at  law  and 
suits  in  equity  has  been  abolished  by  the  Code  is  clearly  stated 
by  Sherwood,  J.,  in  Nichols  v.  Stevens?  where,  in  laying  down 
the  rule  as  to  pleading  fraud,  the  learned  judge  says  that  there 
is  no  reason  for  saying  that  a  petition  is  not  good  in  equity  un- 
less it  sets  forth  the  facts  constituting  the  fraud,  but  that  it  may 
be  good  at  law,  "  because  we  have  in  this  state  but  one  form  of 
action."  (p.  118.)  Yet  the  court  recognizes  that  it  is  not  merely 
as  to  forms  that  the  distinction  has  disappeared.  For  it  says  in 
one  case :  "  We  use  the  old  terms  '  law '  and  '  equity '  from  cus- 
tom and  convenience,  but  only  to  indicate  the  different  modes  of 
trial  and  the  kind  of  relief  sought;"6  thus  extending  the  effect 
of  the  statute  to  something  more  than  the  forms  of  pleading. 
Though  the  plaintiff  calls  his  petition  a  bill  in  equity,  the  court 
is  not  bound  to  consider  it  such,  but  may  treat  it  as  a  petition  in 
an  action  at  law,  or  as  any  other  proceeding  which  the  facts  set 
out  therein  may  warrant.7 

§  3.  The  extent  of  the  change.—  As  viewed  by  the  courts  of 
New  York,  from  which  state  the  Missouri  Code  is  taken  almost 
bodily,  the  abolition  of  the  distinction  between  legal  and  equita- 
ble proceedings  was  not  intended  to  initiate  new  principles  of 
law,  by  which  a  class  of  rights  and  of  wrongs  not  previously  the 
proper  subjects  of  judicial  investigation  or  remedy  can  be  judi- 
cially investigated  and  remedied.  The  abolition  in  words  of  the 
distinction  between  actions  at  law  and  suits  in  equity  does  not 

1  Meyers  v.  Field,  37  Mo.  434;  Ruth-  5 123  Mo.  96. 

erford  v.  Williams,  42  Mo.  18.  6  Scott  v.  Caruth,  50  Mo.  120. 

2Magwire  v.  Tyler,  47  Mo.  115.  'State  ex  rel.  v.  Tittmann,  103  Mo. 

3  47  Mo.  115.  553;  Brown  v.  Home  Savings  Bank,  5 

<Fithian  v.  Monks,  43  Mo.  502,  517.  App.  L 


§  3.]  LEGAL   AND   EQUITABLE   PROCEEDINGS.  27 

have  the  effect  to  break  up  the  well-settled  principles  and  limits 
of  common-law  and  equitable  jurisdiction,  and  to  open  to  courts 
as  proper  subjects  of  judicial  discretion  a  class  of  moral  wrongs 
or  misfortunes  not  before  the  legitimate  subjects  of  legal  or  equi- 
table investigation  and  redress;  nor  was  it  intended  to  create  or 
justify  novel  and  unprecedented  causes  of  action.1  That  this  is 
also  the  position  of  the  Missouri  courts  appears  from  the  language 
of  Judge  Holmes  in  Meyers  v.  Field,2  decided  in  1866:  "  The  dis- 
tinction between  law  and  equity,"  he  sa37s,  "  has  not  been  abol- 
ished by  the  new  code  of  practice.  Equitable  rights  are  still  to 
be  determined  according  to  the  doctrines  of  equity  jurisprudence, 
and  in  the  peculiar  modes  of  proceeding  which  are  sometimes 
required  in  such  cases ;  and  legal  rights  are  to  be  ascertained  and 
adjudged  upon  the  principles  of  law,  and  the  rules  of  proceeding 
at  law  are  in  many  respects  very  different  from  those  which  are 
applicable  to  equity  cases.  Pleadings  should  be  drawn  with  ref- 
erence to  these  distinctions,  though  in  the  form  prescribed  by  the 
statute.  Where  the  petition  is  framed  for  legal  redress,  the  plaint- 
iff cannot  be  allowed  to  prove  equitable  rights,  though  the  facts 
be  stated  to  some  extent  in  his  petition.  If  he  seeks  equitable 
relief,  the  facts  must  be  stated  in  such  manner  as  to  show  that 
he  is  entitled  to  the  relief  prayed  for,  as  under  the  former  prac- 
tice; and  if  he  claim  redress  at  law,  the  essential  elements  of  his 
cause  of  action  must  be  stated  with  such  clearness  and  certainty 
as  to  be  intelligible  to  professional,  if  not  to  ordinary,  compre- 
hension." (p.  411.)3  In  1869,  Judge  Wagner,  in  Fithian  v.  Monks* 
uses  language  to  a  like  effect.  He  says:  "The  whole  course  of 
judicial  decisions  in  this  state  has  recognized  the  distinction  be- 
tween matters  of  law  and  matters  of  equity,  and  the  courts  have 
uniformly  been  considered  as  having  a  law  side  and  an  equity 
side  in  reference  to  this  general  jurisdiction.  To  give  the  court 
jurisdiction  in  equity,  a  case  in  equity  must  be  stated  in  the  peti- 
tion ;  and  to  give  jurisdiction  at  law  a  cause  of  action  at  law 
must  be  set  forth."  (p.  517.)  And  in  a  somewhat  later  case 
Judge  Holmes,  again  referring  to  the  subject,  animadverts  upon 
the  error  of  confounding  law  and  equity  not  only  as  to  prin- 
ciples, but  as  to  the  mode  of  proceeding,  as  if  no  distinction  any 
longer  existed.5    "  The  principles  of  equity,"  says  Henry,  J.,  "  are 

i  Cropsey  v.  Sweeney,  27  Barb.  310.  5  Rutherford  v.  Williams,  42  Mo.  18, 

2  37  Mo.  434.  23.    See  also  a  discussion  of  this  ques- 

3  But  compare  §  2,  ante,  especially  tion  by  the  same  judge  in  State  ex  rel. 
cases  cited  in  note  7.  v.  Circuit  Court,  41  Mo.  574,  579. 

*  43  Mo.  502. 


2S  LEGAL   AND    EQUITABLE    PROCEEDINGS.  [§§  4,  5. 

as  deeply  imbedded  in  our  law  as  before  the  adoption  of  the  Code, 
and  he  would  be  regarded  as  a  rash  legislator  who  would  pro- 
pose the  entire  elimination  of  equity  from  our  system  of  juris- 
prudence. It  is  so  interwoven  with  the  common  law  that  noth- 
ing but  confusion  and  disaster  could  result  from  a  change  so 
radical.  It  has  not  been  made  or  attempted  in  this  state,  and 
any  effort  in  that  direction  would  be  resisted  by  every  one  who 
duly  appreciates  the  salutary  and  conservative  influence  of  equity 
upon  strict,  inflexible  law." l 

§  4.  Illustrative  cases.— The  following  decisions  are  in  har- 
mony with  the  principles  above  announced.  Thus,  it  is  held  that 
where  one  seeks  equitable  relief  under  the  Code  he  must  state 
facts  which  would  have  furnished  ground  for  such  relief  under 
the  former  practice.2  If  the  petition  is  framed  on  the  theory  that 
it  is  sought  to  enforce  equitable  rights,  and  it  appears  on  the  trial 
that  the  plaintiff  has  no  equities  which  the  court  is  bound  to  en- 
force, his  bill  must  be  dismissed.  And  this  for  the  reason  that 
defendant  is  entitled  to  a  trial  of  the  issues  by  a  jury,  and  plaint- 
iff will  not  be  allowed  to  deprive  him  of  this  constitutional  right 
by  adopting  an  equitable  form  of  proceeding.3  Therefore  if  it 
should  appear,  either  by  the  allegations  of  the  petition  or  by  the 
evidence  introduced  at  the  trial,  whether  that  evidence  is  intro- 
duced by  plaintiff  or  by  defendant,  that  plaintiff  has  an  adequate 
remedy  at  law,  his  bill  will  be  dismissed.4  Where  an  action  is 
brought  to  recover  losses  resulting  from  a  common  adventure 
between  the  parties,  the  rule  has  been  steadily  adhered  to  in  Mis- 
souri, that,  unless  there  has  been  a  settlement  between  the  par- 
ties, resort  must  be  had  to  the  equitable  side  of  the  court.5 

§5.  Flexibility  of  proceeding. —  Our  supreme  court  has  re- 
cently said  that  the  object  of  all  judicial  proceedings  should  be 
the  attainment  of  right  and  justice,  and  in  courts  of  equity  the 
rules  of  procedure  admit  of  greater  flexibility  to  accomplish  this 
object  than  the  more  strict  rules  of  law.6  But  as  the  Code  abol- 
ishes the  distinction  between  legal  and  equitable  proceedings  so 
far  as  concerns  questions  of  form,  and  leaves  those  distinctions 

1  Bliss  v.  Prichard,  67  Mo.  181,  191.  case,  that  if  a  court  of  equity  can 

2  Jones  v.  Brinker,  20  Mo.  87;  Vas-  maintain  jurisdiction  of  the  case  for 
quez  v.  Ewing,  21  Mo.  31.  any  purpose,  it  will  proceed  to  do  full 

3  Rutherford  v.  Williams,  42  Mo.  18.  justice  between  the  parties. 

4  Humphreys  v.  Atlantic  Milling  Co.,  5  Scott  v.  Caruth,  50  Mo.  120. 

98  Mo.  542.     It  is  of  course  true,  as        6  Haseltine  v.  Smith,  154  Mo.  404. 
stated  by  the  learned  judge  in  this 


§§  6-9.]  LEGAL    AND    EQUITABLE    PROCEEDINGS.  29 

in  existence  in  matters  of  substance  only,  it  would  seem  to  logic- 
ally follow  that  all  proceedings,  whether  formerly  designated 
as  legal  or  as  equitable,  should  possess  the  flexibility  which  for- 
merly attached  only  to  equitable  proceedings. 

§6.  Bills  of  discovery  abolished. —  Bills  of  discovery  have 
been  unknown  to  our  remedial  system  since  the  adoption  of  the 
practice  act,  as  there  are  now  provided  more  convenient  methods 
by  which  every  purpose  of  such  bills  can  be  attained.1 

§  7.  The  answer  in  chancery. —  The  code  of  practice  does 
away  with  the  effect  of  the  answer  in  chancery,  and  it  now  con- 
forms to  the  practice  in  courts  of  law.2  The  case  of  McQueen  v. 
Chouteau?  though  it  was  decided  subsequently  to  the  above  case, 
passed  upon  a  bill  and  answer  which  had  been  filed  previous  to 
the  adoption  of  the  practice  act  in  1849. 

§  8.  Effect  of  pleading  an  equitable  defense. —  An  equitable 
defense  may  be  set  up  in  and  to  any  action  at  law,  whatever 
its  character.4  The  doctrine  which  was  for  a  long  time  main- 
tained in  this  state,  that  the  holder  of  an  equitable  title,  or  one 
seeking  to  enforce  equitable  rights,  must  resort  to  equity  for 
the  purpose,  and  that  he  could  not  at  the  same  time  enforce 
such  equitable  right  or  title  and  obtain  the  remedies  which  are 
administered  by  a  court  of  law,  has  been  abandoned. 

§  9.  An  equitable  defense  will  not  convert  an  action  at  law 
into  one  in  equity,  where  no  affirmative  relief  is  asked.5  And 
this  rule  applies  to  actions  of  ejectment.6  It  must  now  be  con- 
sidered the  settled  rule  in  this  state,  although  there  are  some 
decisions  to  the  contrary,  that  where  the  answer  in  an  action  at 
law  sets  up  not  only  an  equitable  defense,  but  prays  for  affirma- 
tive equitable  relief,  the  case  becomes  an  equitable  suit,  and  is 
governed  by  the  rules  of  procedure  applicable  to  suits  in  equity.7 
Thus  where,  in  an  action  of  ejectment,  defendant  admits  plaint- 
iff's right  to  the  possession,  but  interposes  an  equitable  defense 
to  the  action  and  demands  affirmative  relief,  the  case  is  con- 
verted into  an  equitable  one.8     And  it  seems  that  if  the  answer 

i  Bond  v.  Worley,  26  Mo.  253;  Blanke  6  Carter  v.  Prior,  8  App.  577,  78  Mo. 

v.  St.  Louis-Sonora  Mining  Co.,  35  App.  222;  Kerstner  v.  Vorweg,  130  Mo.  196. 

186.  7  Freeman  v.  Wilkerson,  50  Mo.  554; 

2  Walton  v.  Walton,  17  Mo.  376.  Estes  v.  Fry,  94  Mo.  266;  Wendover 

3  20  Mo.  222.  v.  Baker,  121  Mo.  273;  McCollum  v. 
*  McCollum  v.  Boughton,  132  Mo.  601,  Boughton,  132  Mo.  601. 

621.  8  0'Day  v.  Conn,  131  Mo.  321;  Schu- 

SKostuba  v.  Miller,  137  Mo.  101.  ster  v.  Schuster,  93  Mo.  438. 


30  LEGAL   AND   EQUITABLE   PROCEEDINGS.  [§§  10-12. 

contains  a  cross-bill  which  interposes  an  equitable  defense  going 
to  the  entire  claim  of  plaintiff,  and  it  contains  a  prayer  for  relief 
which  a  court  of  equity  alono  can  grant,  the  action  becomes 
triable  as  one  in  equity.1 

§  10.  If  to  an  action  at  law  an  equitable  defense  is  interposed 
which,  if  established,  is  a  complete  bar  to  plaintiff's  legal  action, 
the  case  necessarily  possesses  all  the  attributes  and  features  of 
one  in  equity.  Thus  if,  in  an  action  of  ejectment,  the  answer 
interposed  equities  which,  if  established,  nullify  the  plaintiff's 
legal  title  and  prevent  a  recovery  by  him,  then  the  existence  of 
those  equities  must  be  first  determined,  and  determined  unfavor- 
ably to  the  defendant,  before  the  legal  title  can  prevail.2 

§  11.  It  is  an  interesting  question  whether,  in  a  case  in  which 
defendant  has  an  equitable  defense  to  an  action  at  law  and  fails 
to  present  it,  he  can  afterward  make  it  the  ground  of  an  inde- 
pendent suit  against  the  plaintiff.  There  is  one  case  in  which 
the  supreme  court  holds  that  this  cannot  be  done,3  though  the 
decision  on  that  point  was  by  a  bare  majority  of  the  court.  And 
in  a  subsequent  case,  in  which  all  the  judges  concurred,  the 
above  decision  was  cited  with  approval.4 

§  12.  Cases  illustrating  the  above  principles. —  In  an  action 
at  law  brought  against  a  railroad  company  to  recover  damages 
for  the  taking  of  plaintiff's  land  by  the  company,  defendant,  in 
addition  to  a  general  denial,  interposed  an  equitable  defense  and 
cross-bill,  the  cross-bill  containing  a  prayer  that  the  plaintiff  be 
required  to  specifically  perform  a  contract  to  convey  to  defend- 
ant a  right  of  way  across  plaintiff's  land.  The  trial  court  treated 
the  claim  by  plaintiff  for  damages  and  the  cross-bill  by  defend- 
ant seeking  a  specific  performance  as  two  separate  actions,  and 
proceeded  first  to  try  the  equitable  suit  raised  by  the  cross-bill. 
Its  finding  was  against  the  defendant  on  its  cross-bill,  and  a  de- 
cree was  entered  that  said  cross-bill  be  dismissed.  It  then  tried 
the  action  for  damages  before  a  jury,  and  upon  a  demurrer  to 
the  evidence  being  sustained  plaintiff  took  a  nonsuit.  After- 
wards plaintiff  instituted  another  action  for  damages  for  the  ap- 

i  Seaboard  National  Bank  v.  Woes-  apply  in  a  case  where  affirmative  re- 
ten,  68  App.  137.  This  case  is  an  ao  lief  is  not  asked,  if  the  equitable  de- 
tion  on  a  special  tax  bill.  fense  completely  nullifies  the  plaint- 

2  Allen  v.  Logan,   96  Mo.   591.     In  iff 's  legal  cause  of  action, 
that  case  the  defendant  prayed  for        3  Kelly  v.  Hurt,  74  Mo.  561. 
affi  rmative  relief,  but  I  do  not  see  any        *  Bobb  v.  Graham,  89  Mo.  200,  209. 
reason  why  the  same  rule  should  not 


§  13.]  LEGAL   AND   EQUITABLE   PROCEEDINGS.  31 

propriation  of  the  same  land,  and  at  the  trial  tendered  defendant 
a  deed  for  the  right  of  way.  The  jury  rendered  a  verdict  award- 
ing plaintiff  substantial  damages.  It  was  held  that  the  separate 
trials  were  proper,  and  that  the  decree  against  the  defendant  on 
its  cross-bill  settled  forever  and  completely  the  rights  and  lia- 
bilities of  the  parties  under  the  agreement  set  up  in  such  cross- 
bill; and  further,  that  the  decree  so  had  in  the  equity  part  of 
the  case  was  not  disturbed  by  the  subsequent  nonsuit  in  the  ac- 
tion at  law.  The  court  therefore  refused  to  disturb  the  verdict 
in  plaintiff's  favor.1 

§  13.  In  the  case  of  Wynn  v.  Cory2  the  petition  combined  an 
action  in  ejectment  with  a  suit  in  equity  for  the  cancellation  of  a 
deed.  The  trial  proceeded  in  all  respects  as  that  of  a  suit  in 
equity,  special  issues  being  framed  for  the  jury,  both  in  relation 
to  the  question  of  defendant's  notice  of  plaintiff's  title  and  also 
in  relation  to  the  amount  of  damages,  and  separate  juries  passed 
upon  these  two  points.  The  judgment  was  for  possession,  with 
damages  and  costs,  as  in  an  ejectment  suit.  It  was  held  that 
this  judgment  could  not  be  allowed  to  stand ;  that  either  the 
chancery  branch  of  the  case  should  have  been  rejected  as  sur- 
plusage, and  a  trial  and  judgment  had  as  in  an  action  at  law,  or 
the  law  branch  of  the  case  should  have  been  rejected  and  a  trial 
and  judgment  had  in  accordance  with  the  practice  in  equity. 

iMcReynolds  v.  Kansas  City,  C.  &       243  Mo.  301. 
S.  R  Co.,  34  App.  582. 


CHAPTER  II. 

AVOIDING  CIRCUITY  OF  ACTION. 


§  15.  Settling  all  rights  in  one  pro- 
ceeding. 

17.  The  early  decisions  on  this  point. 

19.  Legal  and  equitable  causes  must 
be  separately  stated. 

22.  Decisions  illustrating  the  rula 

24  Release  procured  by  fraud. 


§  25.  Alternative   relief  will  not  be 
granted. 

26.  The  rule  applied  to  defenses. 

27.  Mistake. 

28.  Affirmative  relief. 

29.  A  case  enforcing  the  above  rules. 

30.  Remedy  of  one  defendant  against 

another. 


§  15.  Settling  all  rights  in  one  proceeding. — Among  the  more 
important  reforms  sought  to  be  introduced  by  the  practice  act 
is  that  of  obviating  circuity  of  action  by  permitting  parties  in 
one  and  the  same  action  to  adjust  and  determine  all  their  re- 
spective rights  and  claims  connected  with  and  growing  out  of 
the  subject-matter  of  the  action.1  Mr.  Pomeroy,  in  his  work  on 
Remedies,  well  says  that  the  new  system  not  only  permits,  but 
encourages,  the  notion  that  all  possible  disputes  or  controversies 
arising  out  of,  or  connected  with,  the  same  subject-matter  or 
transaction  should  be  settled  in  a  single  judicial  action.  I  think 
it  would  not  be  going  too  far  to  say  that  the  spirit  of  the  system 
requires  this.2 

§  16.  How  widely  different  this  is  from  the  notions  which  ob- 
tained before  the  introduction  of  the  new  system  is  apparent. 
It  is  needless  to  enlarge  upon  the  sharp  distinction  which,  under 
the  former  practice,  existed  between  proceedings  at  law  and 
those  in  equity.  The  subject  is  a  familiar  one  to  every  student 
of  the  law.  Where  one  possessed  equitable  rights  which,  upon 
being  enforced,  would  open  up  to  him  certain  legal  rights,  he 
could  under  no  circumstances  avail  himself  of  the  two  classes  of 
rights  in  the  same  proceeding.  If,  when  sued  at  law,  he  was 
without  any  defense  which  a  court  at  law  would  recognize,  but 
was  able  to  show  that  it  would  be  inequitable  and  unconscion- 

1  Deitz  v.  Leete,  28  App.  540.  him  his  whole  remedy,  nor  should  any 

2  Lord  Brougham,  in  his  speech  upon  one  be  obliged  to  come  twice  over  to 
the  reform  of  the  law,  lays  down  this  the  same  court  for  different  portions 
just  rule:  "No  one  should  be  sent  to  of  his  remedy,  which  he  might  have 
two  courts,  where  one  is  able  to  afford  all  in  one  proceeding." 


§§  17,  18.]  AVOIDING   CIECUITY    OF   ACTION.  33 

able  for  plaintiff  to  enforce  his  legal  rights,  he  would  neverthe- 
less not  be  permitted  to  set  up  this  fact  as  a  defense  to  the  action 
at  law,  but  must  go  into  a  court  of  equity  and  there  stay  the 
proceedings  at  law  until  his  equitable  rights  could  be  so  declared 
as  to  enable  him  to  interpose  them  as  a  defense  to  the  legal  ac- 
tion. If  a  system  has  been  devised  and  put  into  operation  under 
which  this  circuity  of  proceeding  can  be  avoided,  so  that  all 
questions  arising  out  of  the  cause  at  issue  can  be  settled  in  one 
proceeding  instead  of  subjecting  the  parties  to  the  delay,  expense 
and  annoyance  of  two  proceedings,  it  should  be  eagerly  accepted 
by  the  courts  and  the  profession.  Such  a  system  is  not  only  pos- 
sible, but  it  is  furnished  in  the  code  of  practice.  Yet,  strange 
to  say,  courts  have  shown  no  little  unwillingness  to  reap  the  full 
advantage  of  this  change;  and  it  has  only  been  by  slow  and 
gradual  steps  that  they  have  adopted  the  new  system  in  its  com- 
pleteness. Even  at  the  present  day  there  is  manifest  a  hesitancy 
and  almost  a  fear  to  avail  of  all  its  benefits  in  this  respect,  in 
which  is  to  be  found,  if  not  the  most  important  reform,  at  all 
events  one  that  is  far  reaching  in  its  beneficial  results. 

§  17.  The  early  decisions  on  this  point. —  It  was  held  in  1855 
that,  in  an  action  which  involved  the  legal  title  only,  the  court  could 
not  correct  a  mistake  in  the  description  in  a  deed  and  then  give 
effect  to  the  deed  as  amended.1  And  that  case  has  been  cited 
with  approval  in  two  quite  recent  decisions.2  But  in  the  Evans 
case1  the  petition  was  simply  one  in  ejectment,  and  no  attempt 
was  made  to  set  out  any  ground  for  equitable  relief.  There- 
fore all  that  these  three  cases  decide  is  that,  unless  the  mis- 
take in  the  description  is  one  which  may  be  disregarded,  it  can- 
not be  corrected,  where  the  petition  is  not  framed  on  that  theory. 

§  18.  In  an  early  case  it  was  held  that  a  petition  in  which  it 
was  attempted  to  vacate  a  title,  and  at  the  same  time  to  vest 
that  title  in  the  plaintiff  and  to  eject  the  defendant,  was  fatally 
erroneous,  and  that  advantage  might  be  taken  of  the  defect  even 
on  writ  of  error  or  on  appeal.3  But  it  is  probable  that  the  court 
intended  in  that  case  to  hold  only  that  this  could  not  be  done  in 
a  single  count;  for, in  the  opinion, it  is  said  that,  "in  those  cases 
where  it  is  permissible  under  the  Code  to  combine  in  the  same 
proceeding  or  petition  legal  and  equitable  claims,  the  matter  in 
equity  and  the  action  at  law  must  be  separately  stated  and  must 

1  Evans  v.  Greene,  21  Mo.  170,  208.  3Magwire  v.  Tyler,  47  Mo.  115. 

2  West  v.  Bretelle,  115  Mo.  653,  659; 
Presnell  v.  Headley,  141  Mo.  187,  191. 

Mo.  Code  Pl  —  3 


31  AVOIDING    CIRCUITY   OF   ACTION.  [§  19. 

necessarily  be  separately  tried.  Each  count  must  be  tried  by 
itself  according  to  the  prescribed  mode  in  such  actions  and  suits. 
In  an  action  at  law  there  is  a  constitutional  right  of  trial  by  jury, 
which  has  no  existence  in  equity."  (p.  127.)  In  fact  this  is  the 
ruling  which  was  made  in  the  earlier  case  of  Peyton  v.  Rose? 
where  it  is  said:  "If  an  action  at  law  and  a  cause  of  action  be- 
Longing  to  equitable  jurisdiction  can  properly  be  united  in  the 
same  petition,  under  either  of  the  classes  of  claims  mentioned  in 
the  practice  act,  they  must  still  be  separately  stated,  and  must 
necessarily  have  a  separate  trial,  inasmuch  as  the  mode  of  trial 
and  the  rules  of  proceeding  are  essentially  different,  and  the 
judgments  must  be  different."  (p.  202.)  And  it  was  therefore 
held  in  that  case  that  a  bill  to  set  aside  a  deed,  and  to  recover 
the  possession  of  the  land  embraced  in  the  deed,  would  not  lie. 
Janney  v.  Spedden"1  is  cited  as  an  authority.  But  it  will  be  no- 
ticed that  in  the  case  cited  the  ground  set  up  for  equitable  inter- 
ference was  not  sustained  by  the  evidence,  and  the  court  held 
that  a  bill  in  equity  could  not  be  maintained  merely  for  the  pur- 
pose of  obtaining  possession,  which  was  all  that  the  evidence  did 
support.  The  question  again  came  before  the  supreme  court  in 
1872,  in  Henderson  v.  Dickey?  when  the  court  declined  to  follow 
Peyton  v.  Pose?  saying:  "It  is  improper  to  mingle  a  cause  which 
is  purely  equitable  with  one  which  is  strictly  legal  in  the  same 
count  in  a  petition,  and  to  proceed  to  try  them  together  before 
a  chancellor;  but  it  does  not  thence  follow  that  in  all  cases  a 
party  must  first  get  his  decree  for  title,  and  then  bring  a  sepa- 
rate and  independent  action  in  ejectment  to  obtain  possession." 
(p.  165.)  And  the  court  adds  that  the  fault  in  Peyton  v.  Pose 
Avas  that  the  cause  of  action  at  law  and  the  bill  in  equity  were 
united  in  the  same  count. 

§  19.  Legal  and  equitable  causes  must  be  separately  stated. 
It  thus  became  the  settled  law  that  when  legal  and  equitable 
causes  are  combined  they  must  be  separately  stated;  and  if  they 
are  not,  the  judgment  rendered  will  be  reversed  by  the  appellate 
court.  Where  the  petition  combined  an  action  in  ejectment 
with  a  suit  for  the  cancellation  of  a  deed,  and  the  trial  proceeded 
as  a  suit  in  equity,  special  issues  being  framed  for  a  jury,  both 
in  relation  to  the  question  of  defendant's  notice  of  plaintiff's  title 
and  also  in  relation  to  the  amount  of  plaintiff's  damages,  sepa- 
rate juries  passing  upon  each  of  these  points,  a  judgment  for 
possession  with  damages  and  costs,  as  in  a  plain  ejectment  suit, 

1 41  Mo.  257.  2  38  Mo.  395.  3  30  Mo.  161. 


§§  20,  21.]  AVOIDING    CIRCUITY   OF   ACTION.  35 

was  set  aside  by  the  supreme  court.1  It  may  also  now  be  con- 
sidered settled  that  in  all  cases  a  plaintiff  may  in  one  proceeding 
enforce  all  the  rights  he  has  as  to  any  subject-matter,  though  a 
part  of  the  rights  are  legal  and  a  part  are  equitable  in  their  nat- 
ure, if  they  are  separately  set  forth.  A  court  of  equity  may 
grant  equitable  relief  by  divesting  title  out  of  the  defendant  and 
vesting  it  in  the  plaintiff,  and  may  then  award  plaintiff  a  writ 
of  possession ;  its  powers  are  adequate  to  do  full  and  complete 
justice  in  such  a  case,  and  plaintiff  will  not  be  compelled  to  re- 
sort to  an  action  of  ejectment.2  And,  on  the  other  hand,  where 
a  deed  is  executed  under  a  power,  but  under  such  circumstances 
as  to  constitute  a  fraudulent  exercise  of  the  power,  it  may  be 
assailed  by  an  action  of  ejectment  against  the  grantee,  without 
first  resorting  to  a  court  of  equity  to  set  it  aside.3 

§  20.  Where  the  petition  contains  a  count  praying  for  equitable 
relief,  plaintiff  may  in  another  count  ask  for  the  statutory  foreclos- 
ure of  a  mortgage.4  Where  an  action  is  brought  against  husband 
and  wife  on  a  promissory  note  executed  by  both,  plaintiff  may 
at  the  same  time  pray  that  the  separate  property  of  the  wife  be 
subjected  to  sale  for  the  payment  of  the  note.5  But  where  the 
separate  estate  of  the  wife  is  involved,  the  courts  manifest  a  dis- 
position to  proceed  conservatively.  Thus,  in  a  recent  case,  de- 
fendant, being  the  owner  of  forty  acres  of  land  on  which  there 
was  a  deed  of  trust  for  $1,200,  sold  it  to  Nichols,  who  was  at  the 
time  indebted  to  plaintiff,  and  against  whom  plaintiff  recovered 
judgment  in  the  circuit  court.  The  deed,  a  general  warranty, 
was  made  to  the  wife  of  Nichols  and  put  of  record  before  plaint- 
iff's judgment.  Afterward  defendant  bought  the  land  at  the 
trustee's  sale  and  went  into  possession,  but  before  this  sale  the 
sheriff  had  levied  on  the  land  under  plaintiff's  judgment  and  sold 
it  to  plaintiff,  who  brought  ejectment  against  defendant  alone, 
on  the  ground  that  the  deed  to  the  wife  of  Nichols  was  fraudu- 
lent as  to  creditors  and  void.  It  was  held  that,  in  an  action  of 
ejectment,  the  legal  title  could  not  be  divested  out  of  Mrs.  Nich- 
ols and  vested  in  plaintiff,  but  that  this  could  be  done  only  by 
showing  his  equitable  right.8 

§  21.  Where  a  proceeding  is  brought  for  the  admeasurement 

1  Wynn  v.  Cory,  43  Mo.  301.  That  in  an  action  for  nuisance  or  for 

2  Woodsworth  v.  Tanner,  94  Mo.  124.    a  trespass  there  may  a  be  prayer  for  an 
3Scheidt  v.  Crecelius,  94  Mo.  322.    injunction,  see  §  23,  notes  3  and  4. 

Consult  also  chapter  I.  .  5  Lincoln  v.  Rowe,  51  Mo.  571. 

4Burnside  v.  Wayman,  49  Mo.  350.        6  Kingman  v.  Sievers,  143  Mo.  519. 


36  AVOIDING    CIRCUITY    OF    ACTION.  [§§  22,  23. 

of  dower  in  land  which  is  in  the  possession  of  defendant,  tho 
court  may  assign  tho  dower,  and  in  the  same  proceeding  decree 
possession  of  the  land  to  the  various  parties  in  accordance  with 
the  assignment.1 

§  22.  Farther  illustrations. —  In  1858  it  was  held  that  parti- 
tion would  not  lie  against  one  in  possession  of  land  asserting  an 
exclusive  title  thereto,  but  that  the  party  out  of  possession  must 
first  bring  his  action  of  ejectment  to  try  his  title.2  And  tho 
same  view  seems  to  .have  been  entertained  as  late  as  1897.3  But 
it  is  only  where  the  defendant  is  in  adverse  possession  of  the  en- 
tire premises,  claiming  an  absolute  title  thereto  adversely  to  any 
co-tenant,  that  a  co-tenant  will  be  driven  to  an  action  of  eject- 
ment before  he  can  maintain  partition.4  A  bill  to  correct  a  deed 
procured  by  fraud,  and  also  for  partition  of  the  land,  is  not  bad 
for  misjoinder.5  A  court  of  equity  may  enforce  a  trust  between 
tenants  in  common  and  at  the  same  time  make  partition  and 
take  an  account  of  the  rents  and  of  the  improvements  made,  or  of 
moneys  paid  out  for  the  common  benefit.  And  if  one  of  the 
joint  owners  appears  to  have  received  more  than  his  share,  a 
court  of  equity  will  direct  an  accounting,  and  will  not  confine 
itself  to  a  mere  decree  of  partition.6  In  a  proceeding  to  enforce 
the  specific  performance  of  a  contract  to  convey  land,  the  peti- 
tion may  include  a  prayer  that  defendant  be  compelled  to  ac- 
count for  the  rents  and  profits  of  the  land.7 

§  23.  It  is  proper  to  unite  with  a  cause  of  action  in  ejectment 
a  count  in  equity  praying  that  certain  deeds,  under  which  the 
defendant  claims,  be  set  aside.8  One  may  maintain  an  action  of 
ejectment  though  his  title  is  based  upon  lost  deeds,  and  will  not 
be  compelled  first  to  resort  to  equity  to  establish  the  deeds  and 
their  loss.9  Where  one  who  holds  a  life  estate,  with  power  to 
sell  in  case  of  necessity,  makes  a  deed,  the  remaindermen  may, 
by  an  action  in  ejectment,  attack  the  deed  upon  the  ground  that 
the  necessity  to  sell  did  not  exist,  and  that  the  sale  was  an  abuse 
of  the  power,  and  it  is  not  necessary  that  they  shall  first  resort 
to  equity  to  have  the  deed  set  aside.10  Where  an  action  is  brought 

i  Honaker  v.  Shough,  55  Mo.  472.  6  Rozier  v.  Griffith,  31  Mo.  171. 

2  Lambert  v.   Blumenthal,   26    Mo.  7  Duvall  v.  Tinsley,  54  Mo.  93. 

471;  Gott  v.  Powell,  41  Mo.  416.  8  Morrison   v.   Herrington,  120  Mo. 

SHutson    v.   Hutson,   139  Mo.   229;  665. 

Estes  v.  Nell,  140  Mo.  639.  9  Donaldson  v.  Williams,  50  Mo.  407. 

*  Holloway  v.  Holloway,  97  Mo.  628.  w  Scheidt  v.  Crecelius,  94  Mo.  322. 

5  Dameron  v.  Jamison,  4  App.  299. 


§§  24,  25.]  AVOIDING   CIRCUITY   OF   ACTION.  37 

for  the  price  of  a  machine,  the  court  ma}'  properly  make  the 
original  purchaser  and  his  vendee  parties  defendant,  and  in  the 
suit  settle  the  plaintiff's  right  to  levy  execution  on  the  machine.1 
A  bill  in  equity  to  reform  a  policy  of  insurance  may  properly  be 
joined  with  an  action  at  law  for  recovery  upon  the  reformed 
policy.2  In  an  action  for  damages  for  the  maintenance  of  a  nui- 
sance, plaintiff  may  properly  unite  a  prayer  for  an  injunction 
with  that  for  damages ; 3  so  also  in  an  action  for  trespass,  he  may 
properly  embrace  a  prayer  for  an  injunction.4 

§  24." Release  procured  by  fraud. —  Where  a  release  of  a  cause 
of  action  has  been  procured  by  fraud,  and  the  party  injured  de- 
sires to  bring  his  action,  he  is  not  compelled  to  file  a  separate  bill 
in  equity  in  order  to  have  the  release  set  aside  before  bringing 
the  action,  but  may  by  a  separate  count  in  his  petition  ask  to  have 
the  release  set  aside  on  the  ground  of  fraud  in  its  procurement.5 
And  the  weight  of  authority,  as  shown  by  the  above  cases,  is  that 
he  may,  if  the  release  is  set  up  in  the  answer  as  a  defense,  im- 
peach it  for  fraud  by  his  reply.6  The  rule  that  a  count  in  equity 
to  set  aside  a  release  of  damages  for  personal  injuries  may  be 
joined  with  one  at  law  for  a  recovery  of  the  damages  applies  to 
actions  based  upon  personal  injuries.7- 

§  25.  Alternative  relief  will  not  be  granted.— Though  the 
courts  have  shown  a  praiseworthy  desire  to  avoid  unnecessary 
circuity  of  action,  they  have  not  gone  so  far  as  to  permit  a  party 
to  seek  alternative  relief,  or,  in  other  words,  to  ask  that  if  plaint- 
iff should  have  mistaken  his  remedy  and  should  fail  to  obtain  the 
relief  he  prays  for,  another  and  different  cause  of  action  may  be 
tried,  and  a  different  relief  awarded.8  If  a  suit  is  brought  to  en- 
force a  trust  with  reference  to  specific  property,  and  plaintiff 
prays  a  divestiture  of  the  title,  and  then  asks  that  if  the  court 
should  refuse  this  prayer  it  would  proceed  to  ascertain  the  re- 
spective rights  of  the  plaintiff  and  defendant,  and  decree  a  par- 

1  Steam  Stonecutter  Co.  v.  Myers,  64  «  This  he  may  now  do  by  an  express 
App.  527.  provision  of  the  statute.    Rev.  Stat. 

2  McHoney  v.  German  Ins.  Co.,  44    1899,  sec.  634. 

App.  426.  ?  Blair  v.  Chicago  &  Alton  R.  Co.,  89 

3  Paddock  v.  Somes,  102  Mo.  226;  Mo.  383 ;  Och  v.  Missouri,  K.  &T.R.  Co., 
Whipple  v.  Mclntyre,  69  App.  397.  130  Mo.  27;  Hancock  v.  Blackwell,  139 

*  Ware  v.  Johnson,  55  Mo.  500.  Mo.  440. 

»Girard  v.  St.  Louis  Car  Wheel  Co.,        8  Robinson  v.  Rice,  20  Mo.  229;  Pen- 
46  App.  79;  Homuth  v.  Metropolitan    senneau  v.  Pensenneau,  22  Mo.  27. 
Street  Ry.  Co.,  129  Mo.  629;  Courtney 
v.  Blackwell,  150  Mo.  245. 


38  AVOIDING    CIRCUITY    OF   ACTION.  [§§  20-28. 

tition  and  division,  such  latter  relief  will  not  be  granted.1  So, 
too,  in  an  action  of  replevin  plaintiff  cannot  ask  that,  if  he  is  de- 
feated in  his  claim  to  the  property,  he  may  recover  on  a  warranty 
of  the  title.2 

§  2G.  The  rule  applied  to  defenses. —  It  is  not  alone  the  plaint- 
iff who  is  permitted  to  enforce  both  legal  and  equitable  rights 
in  the  same  proceeding.  The  defendant  also  comes  within  the 
rule,  and  he  may  set  up  a  defense  which  is  equitable  in  its  nature, 
either  by  itself  or  in  connection  with  a  purely  legal  defense ;  and 
that,  too,  whether  the  cause  of  action  is  one  at  law  or  in  equity. 
This  point  has  been  so  fully  discussed  in  the  chapter  on  Legal 
and  Equitable  Proceedings 3  that  it  is  necessary  to  add  but  little 
here.  As  an  instance  showing  the  extent  to  which  the  rule  is 
carried,  it  has  been  held  that  Avhere  four  successive  actions  in 
ejectment  have  been  brought  for  the  same  premises,  all  based 
upon  the  same  facts,  it  is  proper  for  defendant  in  his  answer  to 
the  last  action  to  join  a  count  in  equity,  in  the  nature  of  a  bill 
of  peace.4 

§  27.  Mistake. —  Our  courts  now  recognize  the  right  of  a  de- 
fendant in  an  action  at  law  to  set  up  as  an  equitable  defense  a 
mistake  in  the  instrument  which  is  the  basis  of  the  action ;  and 
such  defense,  if  proved,  will  defeat  the  action,  whether  or  not 
affirmative  relief  is  asked.  Thus  in  Barlow  v.  Elliott,5  which 
was  an  action  for  breach  of  covenants  in  a  deed,  the  petition 
alleged  that  the  land  described  in  the  deed  was  incumbered  by 
a  deed  of  trust;  defendant,  in  addition  to  a  general  denial,  inter- 
posed the  equitable  defense  that  the  grantee  and  covenantee 
agreed  to  assume  and  pay  off  this  incumbrance,  but  by  mistake 
or  oversight  of  the  scrivener  this  agreement  was  not  set  out  in 
the  deed.  It  was  held  that  evidence  of  this  fact  was  admissible, 
and  that  if  the  fact  were  proved  it  was  a  complete  defense  to 
the  action,  though  defendant  did  not  pray  that  the  deed  be  re- 
formed. 

§  28.  Affirmative  relief. — Where  defendant  in  ejectment  has 
an  equitable  defense  which  entitles  him  to  affirmative  relief,  he 
may  set  it  up  in  the  action  of  ejectment.  He  is  not  bound  to 
first  try  his  title  at  law  and,  if  defeated  there,  then  file  a  bill  to 

1  Pensenneau  v.  Pensenneau,  22  Mo.  proceeding  to  set  aside  a  release  may 
27.  be  joined  with  a  cause  of  action  or  a 

2  Robinson  v.  Rice,  20  Mo.  229.  defense.   See  also  §  24,  ante,  and  §  765, 

3  See  §  8  et  seq.,  ante.  post. 
♦Potter  v.  Adams,  143  Mo.  GGo.     A        »56  App.  374. 


§  29.]  AVOIDING   CIRCUITY   OF   ACTION.  39 

enjoin  the  execution.1  It  being  the  settled  law  in  this  state  that 
the  defendant  in  an  action  of  ejectment  may  by  answer  inter- 
pose an  equitable  defense  and  have  his  equities  tried  and  deter- 
mined in  that  action,  without  having  to  resort  to  an  independent 
suit  in  equity,  it  logically  follows  that  affirmative  relief  may  be 
given  to  the  defendant  upon  his  answer  in  all  such  cases  where 
from  the  nature  of  the  subject-matter  and  the  relations  of  the  par- 
ties a  specific  remedy  in  his  favor  is  possible  according  to  the  doc- 
trine of  equity  jurisprudence.  And  such  is  the  holding  of  our 
courts.2  If  defendant  interposes  the  defense  that  the  trustee's 
deed  under  which  plaintiff  claims  was  void,  because  the  notice 
of  sale  required  by  the  deed  of  trust  was  not  given,  plaintiff  may 
in  his  reply  ask  for  a  judgment  of  foreclosure  and  a  sale,  and  a 
decree  may  properly  be  rendered  to  that  effect.3 

§  29.  A  case  enforcing  the  above  rules.— A  case  which  strik- 
ingly illustrates  the  difference  between  the  practice  under  the 
Code,  and  that  which  formerly  prevailed,  is  that  of  Martin  v. 
Turnbaugh*  in  which  Marshall,  J.,  in  his  usual  lucid  manner, ex- 
plains the  effect  of  the  change  in  method  of  procedure.  The  case 
was  one  in  ejectment.  Defendant  set  up  certain  equitable  de- 
fenses and  prayed  for  equitable  relief.  Plaintiff  in  his  reply  al- 
leged facts  which  constituted  an  equitable  defense  to  the  allega- 
tions of  the  answer.  The  trial  court  tried  the  cause  as  one  in 
equity,  received  the  defendant's  evidence  in  support  of  his  equi- 
table defenses,  but  rejected  the  evidence  offered  by  plaintiff  to 
establish  the  averments  of  his  reply.  The  supreme  court  held 
that  this  was  error.  The  following  is  the  language  of  Judge 
Marshall:  "  This  case  is  a  strong  illustration  of  the  difference  be- 
tween proceedings  at  common  law  and  under  our  code.  It  is  a 
plain  suit  in  ejectment.  When  it  was  begun,  the  title  was  in  the 
plaintiffs,  and  the  defendant  was  in  possession  without  any  right 
of  record.  But  by  his  answer  the  defendant  asks  the  court,  on 
its  chancery  side,  to  raise  up  or  restore  an  equitable  right  to  the 
possession,  by  canceling  the  entry  of  satisfaction  of  the  deeds  of 
trust  and  reinstating  them.  Unless  and  until  the  court  does  so, 
which  it  can  only  do  after  a  trial,  the  defendant  has  shown  no 
defense  to  the  plaintiffs'  right  to  the  possession  of  the  land.  At 
common  law  the  defendant  could  not  have  interposed  such  a  de- 

>  St.  Louis  v.  Schulenburg  &  Boeck-       3  White  v.  Rush,  58  Mo.  105. 
ler  Lumber  Co.,  98  Mo.  01 8.  4 153  Mo.  172. 

2Swope  v.  Weller,  119  Mo.  550.    See 
also  Sampson  v.  Mitchell,  125  Mo.  217. 


40  AVOIDING    CIRCUITY    OF    ACTION.  [§  29. 

fense  or  asked  such  relief  in  the  ejectment  suit.  The  defendant 
would  have  been  compelled  to  ask  the  aid  of  a  court  of  equity, 
and  the  proceedings  in  the  ejectment  suit  would  have  been  stayed 
until  the  determination  of  the  equity  suit.  When  the  defendant 
wont  into  a  court  of  equity  and  asked  to  have  the  entry  of  satisfac- 
tion annulled  and  the  deeds  of  trust  reinstated,  the  plaintiff  could 
have  defended  on  the  grounds  stated  in  his  reply;  that  is,  that 
the  defendant  had  lost  his  right  to  have  the  relief  asked  because 
of  his  fraud,  by  virtue  of  the  merger,  or  by  reason  of  the  pay- 
ment of  the  debt  secured  by  the  deeds  of  trust.  If  the  plaintiffs 
herein  (who  would,  of  course,  be  the  defendants  in  such  a  suit  in 
equity)  established  any  of  these  defenses,  the  defendant  herein 
(the  plaintiff  in  such  an  equity  suit)  would  be  denied  the  relief 
sought,  the  equity  suit  would  be  ended,  and  the  defendant  would 
have  no  further  defense  in  the  ejectment  suit,  and  hence  the  judg- 
ment would  be  for  the  plaintiffs."  After  stating  the  course  which 
such  a  suit  in  equity' would  take,  the  learned  judge  proceeds: 

"  It  was  the  very  purpose  of  the  Code,  when  the  common  law 
and  equity  powers  were  centered  in  the  same  court,  to  abolish  this 
circumlocution,  and  hence  the  petition  may  now  have  a  count  at 
law  and  a  count  in  equity  (Eev.  Stat.  1889,  sec.  2040),1  the  answer 
may  contain  a  legal  defense,  an  equitable  defense  and  an  equitable 
cross-bill  or  counter-claim  (Rev.  Stat.  1889,  sec.  2050),2  and  the 
reply  may  set  up  legal  or  equitable  defenses  to  the  new  matter 
set  up  in  the  answer  (Rev.  Stat.  1889,  sec.  2052).3  The  object  of 
all  which  is  to  simplify  proceedings,  and  to  settle  the  whole  con- 
troversy between  the  parties  in  the  one  action.  If  the  action  is 
one  at  law,  and  the  answer  seeks  affirmative  equitable  relief,  or 
pleads  a  legal  defense,  and  the  reply  raises  an  equitable  defense 
to  the  affirmative  legal  defense  set  up  in  the  answer,  the  equi- 
table claim  or  defense  must  be  tried  by  the  court,  sitting  in  equity, 
before  the  action  at  law  can  be  tried ;  and  this  is  the  statutory 
substitute  for  the  relief  formerly  afforded  by  courts  of  law  and 
courts  of  equity  collectively.  In  this  case  the  court  has  stayed 
the  plaintiffs'  suit  at  law  while  it  heard  defendant's  cross-action 
in  equity,  but  it  has  refused  to  hear  the  plaintiffs'  defense  to  the 
defendant's  cross-action  in  equity,  and  thus  it  has  granted  de- 
fendant the  equitable  relief  he  asked  and  denied  the  plaintiffs 
the  right  to  defend  in  equity  against  the  defendant's  equitable 
claim,  and  also  denied  the  plaintiffs  the  relief  at  law  they  asked. 
.     .     .     The  error  of  the  trial  court  was  in  not  dealing  with 

i  Rev.  Stat.  1899,  sec.  593.  2  Rev.  Stat.  1899,  sec.  605.  3  Rev.  Stat.  1899,  sec.  607. 


§§  30,  31.]  AVOIDING   CIRCUITY    OF    ACTION.  41 

the  whole  controversy  when  it  tried  the  case  as  one  in  equity. 
If  it  was  a  case  in  equity  so  far  as  the  defendant  was  concerned, 
it  was  the  duty  of  the  court,  in  trying  defendant's  claim  in 
equity,  to  hear  and  determine  all  the  equitable  defenses  which 
a  court  of  equity  would  or  could  hear  if  it  had  been  an  original 
proceeding  by  Estes  to  have  his  entry  of  satisfaction  annulled 
and  his  deeds  of  trust  reinstated.  In  other  words,  the  court  did 
equity  for  Estes  but  refused  to  do  it  for  Martin,  and  told  him  to 
go  into  a  court  of  equity  to  get  relief,  notwithstanding  he  was 
already  in  a  court  of  equity.  This  is  more  circumlocution  than 
existed  before  the  adoption  of  the  Code."     (p.  185.) 

§  30.  Remedy  of  one  defendant  against  another.—  One  of  the 
most  important  questions  in  this  connection  is  that  of  the  right 
of  one  defendant  to  obtain  relief  against  another  defendant,  so 
that  the  rights  of  all  parties  may  be  completely  adjudicated  in  the 
same  proceeding.     Section  767 1  provides  that  judgment  may  be 
given  for  or  against  one  or  more  of  several  plaintiffs,  and  for  or 
against  one  or  more  of  several  defendants;  that  the  judgment 
may  determine  the  ultimate  rights  of  the  parties  on  each  side  as 
between  themselves,  and  that  it  may  grant  to  the  defendant  any 
affirmative  relief  to  which  he  may  be  entitled.   In  a  very  recent 
decision  of  the  supreme  court  it  is  held  that  neither  the  above 
section,  nor  any  other  provision  of  the  Missouri  Code,  authorizes 
a  counter-claim  or  an  equitable  cross-action  by  one  defendant 
against  another,  except  as  one  defendant  may  be  entitled  to  such 
relief  against  another  as  will  enable  him  to  make  good  his  de- 
fense to  the  plaintiff's  suit.     Whatever  affirmative  relief  one 
defendant  may  have  as  against  another  must  be  of  a  character 
responsive  to  the  plaintiff's  suit.     The  court  says  further  that 
section  767 !  does  not  authorize  one  defendant  to  inject  into  the 
plaintiff's  suit  an  independent  suit  either  at  law  or  in  equity 
against  his  co-defendant,  if  it  is  not  necessary  or  germane  to  his 
defense  to  the  plaintiff's  suit,  and  the  relief  that  maybe  granted 
to  one  defendant  against  another  is  only  such  as  is  incidental  to 
his  defense.     Moreover,  if  the  plaintiff  is  not  entitled  to  any 
relief  as  against  either  defendant  touching  the  subject-matter  in 
dispute,  one  defendant  cannot  have  relief  against  his  co-defend- 
ant touching  the  same  subject.2 

§  31.  In  that  case  plaintiff  filed  his  bill  in  equity  to  establish 
a  resulting  trust  in  land  held  by  defendant  Gr.  under  a  claim  of 

1  Rev.  Stat.  1899.  2  Joyce  v.  Growney,  1~>4  Mo.  253. 


-12  AVOIDING    CIRCUITY   OF   ACTION.  [§  31. 

ownership,  but  which  plaintiff  claimed  defendant  G.  had  acquired 
from  defendant  J.  by  fraudulent  acts  and  by  threats.     At  the 
trial,  and  after  the  evidence  was  all  in,  defendant  J.  was  per- 
mitted to  file  an  amended  answer,  in  which  he  asserted  title  in 
himself  to  a  part  of  the  land,  and  alleged  that  the  deeds  to  his 
co-defendant  were  without  consideration,  and  his  answer  con- 
cluded with  a  prayer  that  the  deeds  to  the  co-defendant  be  can- 
celed, and  for  such  further  relief  as  equity  and  good  conscience 
might  require.1     Plaintiff  failed  to  make  out  a  case  entitling  him 
to  equitable  relief,  but  the  court  granted  the  prayer  of  defend- 
ant J.  against  defendant  G.,  and  entered  a  decree  accordingly. 
This  the  supreme  court  held  to  be  erroneous,  and  it  reversed  the 
judgment  with  directions  to  the  court  below  to  dismiss  the 
plaintiff's  bill.     This  decision  apparently  turns  upon  the  fact  that 
plaintiff  was  not  entitled  to  any  relief  as  against  either  defend- 
ant, and  that  therefore  the  decree  as  between  the  two  defend- 
ants had  nothing  to  rest  on.     For  the  court  does  not  intimate 
that  the  earlier  case,  of  Hicks  v.  Jackson 2  is  overruled.     Yet  it  is 
difficult  to  find  in  this  earlier  case  any  announcement  of  the  doc- 
trine that  one  defendant  cannot  maintain  an  equitable  cross- 
action  against  another  defendant  "  except  as  one  defendant  may 
be  entitled  to  such  relief  against  another  as  will  enable  him  to 
make  good  his  defense  to  the  plaintiff's  suit."  The  point  decided, 
and  apparently  the  only  point  decided,  in  the  Hicks  case2  is  that 
the  two  defendants,  between  whom  the  question  of  relief  is 
raised,  must  be  both  of  them  necessary  parties  to  a  complete  de- 
termination of  the  plaintiff's  cause  of  action;  not  that  they  must 
be  necessary  parties  to  a  recovery  by  plaintiff,  but  that  the  cause 
of  action  which  is  the  foundation  of  plaintiff's  suit  cannot  be 
finally  and  fully  determined  as  to  one  of  the  defendants  without 
settling  his  rights  as  against  another  party.     And  if  such  other 
party  is  not  made  a  defendant  by  the  plaintiff,  the  one  who  is 
made  a  defendant  may  cause  the  other  to  be  brought  in  and 
made  a  co-defendant,  in  order  that  the  rights  as  between  them 
may  be  litigated.3     Since  this  is  the  effect  of  the  decision  in  the 
Hicks  case,2  and  since  the  Joyce  case 4  does  not  purport  to  over- 

1  The  fact  possesses  some  signifi-  not  be  dismissed  as  to  the  party  who 
cance  that  this  amended  answer  di-  is  brought  in  as  a  co-defendant  for  this 
reotly  contradicted  the  same  defend-  purpose,  at  least  not  without  his  con- 
ant's  former  answer.  sent.     Browning  v.  Chrisman,  30  Mo. 

2  85  Mo.  283.  353. 

3  And  it  seems  that  the  cause  can-  4  Joyce  v.  Growney,  154  Mo.  253. 


§  32.]  AVOIDING    CIKCUITY   OF   ACTION.  43 

rule  it,  then  the  scope  of  the  decision  in  the  Joyce  case  must  be 
that  which  is  indicated  above.  The  language  of  the  court  in  the 
Hicks  case  would  seem  to  be  unmistakable.  Judge  Ray  says :  "  It 
will  not  be  pretended  that  the  defendant,  who  shows  himself  en- 
titled to  affirmative  relief  against  his  co-defendant,  is  not  to  be 
treated  and  regarded  as  against  him  as  a  plaintiff  to  that  extent 
and  for  that  purpose." l 

§  32.  The  conclusion  reached  by  the  supreme  court  in  the 
Joyce  case2  was  correct  under  the  circumstances  and  the  peculiar 
facts  of  that  case.  In  the  first  place,  there  is  authority  for  the 
doctrine  that  if  the  plaintiff's  suit  is  dismissed  the  cross-bill  must 
fall  with  it;  and  there  can  be  no  question  that  in  the  case 
under  discussion  the  plaintiff's  bill  was  properly  dismissed.  In 
the  second  place,  the  trial  court  had  abused  its  discretion  in 
allowing  defendant  J.  to  file  an  amended  answer  containing  the 
cross-bill  after  all  the  evidence  was  in,  especially  in  view  of  the 
contradictory  answers  which  had  previously  been  filed  by  him. 
And  for  that  reason  alone  the  decree  in  his  favor  was  properly 
reversed.  But  with  all  due  respect  for  the  high  character  of  the 
judge  who  rendered  the  decision,  I  cannot  but  think  that  the 
dicta  contained  in  the  opinion  confine  within  too  narrow  limits 
the  office  of  a  cross-bill  or  cross-complaint  under  the  Code;  and 
that  the  Hicks  case 3  more  nearly  announces  the  true  rule.  It  is 
undoubtedly  true  that  one  defendant  cannot  inject  into  a  cause 
an  independent  cause  of  action  against  a  co-defendant.  If,  for 
instance,  plaintiff  sues  to  cancel  a  deed  which  has  been  obtained 
through  the  fraud  of  the  grantee  and  his  co-defendant,  and  it 
happens  that  one  of  the  defendants  holds  a  matured  promissory 
note  executed  by  the  other,  he  certainly  cannot  in  his  answer  set 
up  a  cause  of  action  on  that  note  and  recover  on  it  against  his 
co-defendant.  But  this  is  a  far  different  matter  from  allowing 
the  defendant  to  set  up  against  his  co-defendant  a  claim  growing 
out  of  the  subject-matter  of  plaintiff's  cause  of  action.  This  was 
always  permitted  by  courts  of  equity,  not  only  for  the  purpose  of 
making  a  defense,  or  aiding  the  defense,  against  the  claim  of  plaint- 
iff, but  also  for  the  purpose  of  obtaining  affirmative  relief  as  be- 
tween the  defendants  themselves.4  It  should,  therefore,  necessarily 

» 85  Mo.  294.  v.  Miller,  1  Sandf.  Ch.  103;  Vandeveer 

2  Joyce  v.  Growney,  154  Mo.  253.  v.  Holcomb,  17  N.  J.  Eq.  87;  Ayers  v. 

3  85  Mo.  283.  Carver,  17  How.  (U.  S.)  591  [15  Co-op. 
«  Story,  Eq.  Pldg.  (10th  ed.),  sec.  392;  Ed.,  p.  179]. 

Pattison  v.  Hull,  9  Cowen,  747;  Wright 


44  AVOIDING    CIRCUITY    OF    ACTION.  [§  33. 

and  logically  be  permitted  under  the  code  practice.  The  supreme 
court  of  Indiana,  in  considering  a  section  of  the  Indiana  statute 
similar  in  its  terms  to  section  YOT !  of  our  own  statute,  says :  "  The 
mode  of  procedure  is  not  pointed  out  by  the  statute,  and  as  the 
authority  given  is  one  previously  possessed  only  by  courts  of 
chancery,  we  suppose  the  rules  of  pleading  and  practice  of 
those  courts,  modified  by  the  spirit  of  the  Code,  must  be  re- 
sorted to."2 

§  33.  But  the  case  of  Hicks  v.  Jackson*  is  not  the  only  case 
in  which  this  question  had  previously  come  before  our  courts. 
Tucker  v.  St.  Louis  Life  Lis.  Co.*  was  a  suit  for  the  foreclosure 
of  a  first  mortgage,  and  the  holders  of  the  second  and  third 
mortgages  were  made  parties.  The  holders  of  the  third  mort- 
gage alleged  in  their  answer  that  the  second  mortgage  was 
fraudulent,  and  the  answer  contained  a  prayer  that  the  third 
mortgagees  be  preferred  to  the  second  mortgagees  in  the  distri- 
bution of  the  proceeds  of  the  mortgage  sale.  There  is  no  inti- 
mation, either  on  the  part  of  the  various  counsel  or  on  the  part 
of  the  court,  that  such  a  cross-bill  as  between  the  defendants  was 
improper.  Yet  the  supreme  court  distinctly  recognizes  the  fact 
that  the  relief  sought  by  the  third  mortgagees  was  not  necessary 
to  their  defense  as  against  the  plaintiff,  nor,  so  far  as  is  apparent 
from  the  facts  stated,  did  it  have  anything  to  do  with  the  de- 
fense of  either  defendant.  It  will  be  noticed  that  Judge  Sher- 
wood says,  when  referring  to  the  practice  in  courts  of  equity, 
that  "  in  those  courts,  when  one  defendant  sought  relief  against 
a  co-defendant  as  to  matters  dehors  the  original  bill,  it  became 
necessary  for  him  to  file  a  cross-bill  and  have  process  to  bring 
such  defendant  in."5  And  the  learned  judge,  while  deciding 
that  such  course  was  not  necessary  under  the  Code,  yet  clearly 
asserts  the  right  of  the  defendant  to  file  such  a  cross-bill,  and 
says  "  that  it  has  always  been  customary  to  afford  ample  time  to 
the  co-defendant  to  answer  as  to  the  relief  sought  — a  time 
which  is  generally  fixed  by  the  court's  order  to  that  effect." 
(p.  595.)  This  recognition  of  the  custom  in  courts  of  equity  to 
grant  relief  as  between  defendants  in  matters  which  grow  out  of 
the  subject-matter  of  plaintiff's  cause  of  action  possesses  almost 
equal  authority  with  a  direct  decision  on  the  point,  since  what  is 

i  Rev.  Stat.  1899.  4  63  Mo.  588. 

2  Kemp  v.  Mitchell,  36  Ind.  249,  256.       *  63  Mo.  595. 

3  85  Mo.  283. 


§  33.]  AVOIDING   CIRCUITY    OF   ACTION.  45 

stated  in  the  opinion  is  not  a  mere  dictum,  but  is  necessary  to  the 
decision  of  the  question  whether  the  court  improperly  refused  to 
set  aside  a  default  as  to  the  co-defendants.  And  this  is  especially 
true  in  view  of  the  fact  that  the  court  held  that,  even  if  the  court 
below  properly  refused  to  set  aside  the  default  as  to  the  plaint- 
iffs, it  should  have  set  aside  the  default  as  between  the  co-defend- 
ants, so  that  the  co  defendant  against  whom  the  cross-bill  was 
filed  might  have  had  an  opportunity  to  answer  to  such  cross-bill. 


CHAPTER  III. 


GENERAL  RULES  GOVERNING  PLEADING. 


34.  The  purpose  of  the  Code. 

35.  How  issues  are  raised. 

36.  Only  one  pleading  at  a  time. 

37.  The  test  of  sufficiency. 

38.  Averments  must  be  certain. 

39.  Averments  must  be  consistent. 

40.  Pleading  and  proof. 

41.  Signing  pleadings. 

42.  Verification  of  pleadings. 

43.  Verification  of  interplea. 

44.  Verification  in  divorce  cases. 

45.  Time  for  pleading. 

47.  When  defendant  must  plead. 

48.  Same  —  Cross-bill  by  one  defend- 

ant against  another. 


§  49.  "When  plaintiff  must  reply. 

50.  Filing  pleadings  out  of  time. 

51.  Same  —  Demurrer  or  reply. 

52.  Filing  reply  at  trial. 

53.  Treating  reply  as  filed. 

54.  When  leave  is  granted  to  file  a 

pleading  of  one  character,  a 
pleading  of  another  character 
should  not  be  substituted. 

55.  Substituting   one  pleading  for 

another. 

56.  Taking  default. 

57.  Setting  aside  default. 

58.  Lost  pleadings. 


§  34.  The  purpose  of  the  Code. —  The  intention  of  the  prac- 
tice act  was  to  make  all  pleadings  special,  and  to  abolish  gen- 
eral averments  stating  conclusions  of  law;  it  was  meant  that 
the  pleadings  should  be  a  statement  of  the  facts  of  the  case  on 
both  sides.1  Yet  in  the  very  opinion  in  which  the  court  of  ap- 
peals lays  down  this  unquestionably  correct  rule,2  that  court  holds 
that  a  petition  for  money  had  and  received  was  not  good  because 
it  failed  to  aver  a  promise  by  plaintiff  to  pay  the  money.  In  an 
implied  contract  the  promise,  ex  vi  termini,  is  implied  from  the 
facts:  i.  e.,  it  is  a  conclusion  of  law  from  the  facts  stated.  Under 
the  common  law  it  was  never  pretended  that  the  allegation  of  the 
promise  was  an  allegation  of  an  actually  existing  fact.  Yet  our 
courts,  while  repeatedly  declaring  that  the  pleadings  must  state 
facts  and  not  conclusions  of  law,  require  that  in  the  so-called  ac- 
tion of  assumpsit  it  must  be  averred  that  plaintiff  "  promised." 3 
The  reasoning  of  the  Kansas  City  court  of  appeals,  in  holding 
this  to  be  unnecessary,4  appears  to  be  incontrovertible.5 


1  Gamage  v.  Bushell,  1  App.  416, 
418;  Kerr  v.  Simmons,  82  Mo.  269, 275. 

2  Gamage  v.  Bushell,  1  App.  416. 

3  Cape  Girardeau  &  S.  L.  R.  Co.  v. 
Kimmel,  58  Mo.  83,  85,  where  the 
opinion  contain  an  express  admission 
that  the  promise  is  a  conclusion  of 


law,  but  nevertheless  holds  that  it 
must  be  pleaded  as  a  fact. 

4  Kansas  City  Nat.  Bank  v.  Landis, 
34  App.  433. 

5  The  subject  is  discussed  more  at 
length  in  §  343,  post. 


§§  35-37.]    GENERAL  RULES  GOVERNING  PLEADING.  47 

§  35.  How  issues  are  raised. —  An  issue  arises  upon  the  plead- 
ings when  a  fact  or  conclusion  of  law  is  maintained  by  the  one 
party  and  controverted  by  the  other.  They  are  of  two  kinds: 
first,  of  law;  and  second,  of  fact.  An  issue  of  law  arises,  first, 
upon  a  demurrer  to  the  petition,  answer  or  reply,  or  to  some  part 
thereof;  or,  second,  upon  an  allegation  of  fact  in  a  pleading  by 
one  party,  the  truth  of  which  is  not  controverted  by  the  other. 
An  issue  of  fact  arises,  first,  upon  a  material  allegation  in  the 
petition  controverted  by  the  answer;  or,  second,  upon  new  mat- 
ter in  the  answer  controverted  by  the  reply;  or,  third,  upon  new 
matter  in  the  reply,  unless  an  issue  of  law  is  joined  on  such  new 
matter.  Issues  both  of  law  and  fact  may  arise  upon  different 
parts  of  the  pleadings  in  the  same  action,  in  which  case  the  is- 
sues of  law  must  be  first  tried,  unless  the  court  directs  other- 
wise.1 The  issues  must  be  raised  by  the  pleadings,  and  cannot 
be  enlarged  by  the  evidence  or  the  instructions  or  by  both  com- 
bined.2 Much  less  can  evidence  be  introduced  to  overthrow  the 
issue  as  made  by  the  pleading  of  the  party  who  seeks  to  intro- 
duce it.3  Where  parties  have  made  up  their  issues  by  their  plead- 
ings and  gone  to  trial,  the  issues  can  be  changed  only  by  amend- 
ing the  pleadings  on  terms.4 

§  36.  Only  one  pleading  at  a  time, —  Several  pleadings  can- 
not be  applied  to  the  same  part  of  a  pleading  at  the  same  time.5 

§  37.  The  test  of  sufficiency.— The  sufficiency  of  the  pleadings, 
except  where  it  is  otherwise  specially  provided  by  the  statute, 
is  to  be  measured  by  the  practice  act,  and  trips  or  false  steps, 
which  under  the  former  practice  would  have  been  fatal,  are  no 
longer  matters  of  moment.6 

i  Rev.  Stat.  1899,  sees.  677-680;  State  supreme  court  the  statement  that  the 

ex  reL  v.  St.  Louis  Circuit  Court,  41  Code  is  not  sufficiently  comprehensive 

Mo.  574,  579.  to  embrace  every  varied  phase  which 

2  Christian  v.  Connecticut  Mut.  L.  the  case  may  assume  before  reaching 
Ins.  Co.,  143  Mo.  460,  469.  a  judicial  determination,  and  there- 

3  Capital  Bank  v.  Armstrong,  62  Mo.  fore  resort  must  be  frequently  had  to 
59,  66.  common-law  methods  of  procedure, 

4  Mays  v.  Pryce,  95  Mo.  603.  not  only  in  equitable  proceedings,  but 

5  Rev.  Stat.  1899,  sec.  625;  Taber  v.  in  ordinary  actions  at  law.  Tucker  v. 
"Wilson,  34  App.  89;  Long  v.  Towl,  41  St.  Louis  Life  Ins.  Co.,  63  Mo.  588, 594 
Mo.  398.  But  in  a  subsequent  decision  this  re- 

6  Rev.  Stat.  1899,  sec.  591;  Elfrank  v.  mark  is  limited  in  its  application  to 
Seiler,  54  Mo.  134,  136.  Yet,  notwith-  instances  where  it  is  sought  to  open  a 
standing  this  broad  statement  of  prin-  judgment  by  default.  Neenan  v.  St. 
ciple,  we  find  in  an  opinion  of  the  Joseph,  126  Mo.  89,  93. 


48  GENERAL   RULES    GOVERNING    PLEADING.  [§§  3S-41. 

£  38.  Averments  must  be  certain. —  The  Code  calls  for  a 
plain  and  concise  statement  of  facts.1  Vagueness  and  uncer- 
tainty are  contrary  both  to  its  spirit  and  letter.2  As  is  said  by 
the  supreme  court  of  Wisconsin,  no  warrant  can  be  found  in  the 
authorities  for  the  position  that  where  the  objection  is  seasonably 
made,  as  where  the  petition  is  challenged  by  demurrer,  such  pe- 
tition may  be  uncertain  and  ambulatory,  now  presenting  one 
phase  to  the  court  and  now  another,  at  the  mere  will  of  the 
pleader,  so  that  it  may  be  regarded  as  one  in  tort,  or  one  on  con- 
tract, or  in  equity,  as  he  is  pleased  to  name  it  and  the  necessities 
of  argument  require,  and,  if  discovered  to  be  good  in  any  of  the 
turns  or  phases  which  it  may  be  thus  made  to  assume,  that  it 
must  be  upheld  in  that  aspect  as  a  proper  and  sufficient  plead- 
ing.3 

§  39.  Averments  must  be  consistent. —  The  averments  of  a 
pleading  must  be  consistent  with  each  other.4  Where  in  an  ac- 
tion to  recover  damages  for  personal  injuries  the  petition  con- 
tained an  allegation  that  plaintiff,  while  in  the  service  of  a  rail- 
road company,  proceeded  to  uncouple  a  car,  and  that  some  one 
unknown  to  him  caused  the  cars  to  be  moved  without  notice  to 
him,  whereby  he  was  injured ;  and  then  contained  the  further  al- 
legation that  the  failure  of  the  company  to  have  a  proper  system 
and  proper  rules  regarding  such  matters  was  the  direct  cause  of 
the  cars  being  moved  without  notice  to  him,  the  two  allegations 
are  so  inconsistent  that  they  cannot  stand  together.  Plaintiff  al- 
leged that  he  did  not  know  who  caused  the  train  to  move,  from 
which  it  necessarily  follows  that  he  did  not  know  why  and  how  it 
was  moved.  If  he  did  not  know  these  facts,  he  cannot  affirm  that 
the  movement  was  the  result  of  the  failure  to  establish  rules.4 

§  40.  Pleading  and  proof. —  One  of  the  most  important  rules 
of  pleading  is  that  the  allegations  must  be  such  as  will  be  sup- 
ported by  the  proofs ;  or,  as  it  is  generally  expressed,  the  allegata 
and  the  probata  must  correspond.  As  this  subject  is  fully  treated 
in  chapter  V,  the  reader  is  referred  to  that  chapter. 

§  41.  Signing  pleadings. —  Section  6195  provides  that  petitions 
and  other  pleadings  and  motions  must  be  signed  by  the  party  or 

i  Rev.  Stat  1809,  sec.  592.  3  Kewaunee  County  v.   Decker,  30 

^  Rev.  Stat.  1399,  sec.  G12.     The  req-    Wis.  624. 
uisites  of  good  pleading  in  this  regard        4  Rutledge  v.  Missouri  Pac.  R  Co., 
are  fully  set  forth  in  chapters  IV,  XIII    110  Mo.  312.     Consult  also  chapters  IV, 
and  XXIIL  X,  XIII  and  XXIIL 

8  Rev.  Stat.  1899. 


§§  42,  43.]    GENERAL  EULES  GOVERNING  PLEADING.  49 

his  attorney.  But  a  failure  to  sign  an  answer  cannot  be  regarded 
as  a  matter  of  substance;  it  is  a  defect  which  is  cured  by  the 
statute  of  jeofails,1  and  does  not  render  the  judgment  void.2  That 
case  decides  further  that  there  is  no  restriction  as  to  the  place  of 
the  signature,  but  that  it  may  be  at  the  top  or  in  the  body  of 
the  pleading  as  well  as  at  the  end.2 

§  42.  Verification  of  pleadings. —  "Where  it  is  necessary  to 
verify  the  pleading  an  omission  of  the  jurat  is  not  fatal,  but  the 
court  may  allow  it  to  be  attached  nunojpro  tunc?  A  pleading  of 
several  parties  may  be  verified  by  the  affidavit  of  one  of  them.4 
And  where  the  parties  are  husband  and  wife  the  affidavit  of  the 
husband  alone  is  sufficient.5  "Where  a  bank  is  one  of  several  in- 
terpleaders a  verification  by  the  cashier  of  the  bank  is  a  suffi- 
cient verification.6  An  interplea  may  be  verified  by  the  inter- 
pleader's attorney ;  and  it  is  sufficient  if  it  is  sworn  to  to  the  best 
of  the  attorney's  knowledge  and  belief.7  Section  580 8  provides 
that  if  it  is  alleged  in  the  petition  under  oath  that  there  are  per- 
sons interested  in  the  subject-matter  of  the  petition  whose  names 
he  cannot  insert  because  they  are  unknown,  and  he  describes  the 
interest  of  such  persons  and  how  it  is  derived  so  far  as  his  knowL 
edge  extends,  an  order  of  publication  may  be  issued  as  in  case  of 
non-residence.  Section  9303 8  makes  the  practice  in  civil  cases 
applicable,  so  far  as  practicable,  in  an  action  to  collect  delinquent 
taxes.  In  view  of  these  statutory  provisions  it  is  held  that  if,  in 
an  action  for  delinquent  taxes  against  unknown  parties,  the  alle 
gations  as  to  the  interest  of  such  parties  are  not  verified,  the 
court  acquires  no  jurisdiction,  and  the  judgment  rendered  in 
such  case  is  void.9 

§  43.  "Verification  in  case  of  interpleading. —  "Where  an  order 
to  interplead  has  been  made,  and  the  interplea  is  heard  upon  its 
merits,  without  any  verification  of  the  pleading  by  the  party 
holding  the  fund,  the  question  whether  such  verification  is  re- 
quired becomes  unimportant.10    An  interplea  may  be  verified  by 

1  Rev.  Stat.  1899,  sec.  672.  8  ReVi  gtat.  1899. 

2  Cochran  v.  Thomas,  131  Mo.  258.  9  Myers  v.  McRay,  114  Mo.  377. 

3  Bergesch  v.  Keevil,  19  Mo.  127.  The  matter  of  denying  under  oath 

4  Ruch  v.  Jones,  33  Mo.  393.  the  execution  of  the  instrument  sued 

5  Huntington  v.  House,  22  Mo.  365.  on  is  discussed  under   the   answer, 
e  Scott-Force  Hat  Co.  v.  Hombs,  127  (Ch.  XXV.) 

Mo.  392.  w  Merchants'  Nat.  Bank  v.  Richards, 

7  Knapp  v.  Standley,  45  App.  264         6  App.  454. 
Mo.  Code  Pl.— 4 


50  GENERAL  KULES  GOVERNING  TLEADING.    [§§  44-46. 

the  attorney  of  the  interpleader  to  the  best  of  his  knowledge 
and  belief.1 

§  44.  In  divorce  cases. —  The  affidavit  attached  to  a  petition 
for  divorce  need  not  state  the  venue  if  the  petition  itself  lays  the 
venue  in  the  proper  county.2 

§  45.  Time  for  pleading. —  It  has  been  held  that  the  days  given 
by  the  statute  for  filing  pleas  are  days  in  which  the  court  is  in 
actual  session,  and  that  if  the  court  adjourns  over,  the  days  on 
which  it  does  not  sit  are  not  to  be  counted.3  But  the  latter  case 
cited  in  the  note  does  not  properly  raise  this  question,  since  the 
ruling  there  related  to  the  filing  of  a  motion  for  a  new  trial,  and 
it  has  been  since  overruled  on  that  point.4  The  same  principle 
is,  however,  recognized  by  the  same  court  in  Carter  v.  Prior?  and 
in  Allen  v.  Carter?  but  these  cases  are  not  reported  in  full,  and 
upon  an  appeal  of  the  first  one  to  the  supreme  court  the  point 
is  not  considered.7  It  is  well  settled  that  Sunday  is  not  to  be 
counted  as  one  of  the  days.8  In  the  last  case  cited  in  the  note  it 
is  said  that,  independent  of  and  without  the  aid  of  any  statute, 
the  rule  as  to  the  filing  of  papers  in  a  case  is  that,  when  the  last 
day  of  the  time  limited  for  such  filing  falls  on  Sunday,  the  party 
has  the  whole  of  the  next  day  in  which  to  file  them.  And  the 
supreme  court  says  that  Sunday  is  not  counted  in  computing  the 
time  in  which  motions  are  to  be  filed  in  court  or  other  steps  taken 
therein  of  a  similar  nature  in  pending  causes,  as  the  law  does  not 
require  either  lawyers  or  judges  to  work  on  Sunday.9 

§  46.  Holidays,  on  the  other  hand,  even  if  they  are  to  be 
considered  as  Sundays  for  all  general  purposes,  are  still  to  be 
counted  in  computing  statute  time  unless  expressly  excepted.10 
There  is  no  rule  forbidding  the  performance  of  judicial  duties  on 
Christmas,  or  on  any  of  the  holidays  mentioned  in  section  4683 ;  u 
that  section  merely  prohibits  service  of  civil  process  on  such  days 
except  in  attachment  cases  in  certain  contingencies,  and  in  in- 
junction proceedings.12 

i  Knapp  v.  Standley,  45  App.  264.  »  See  78  Mo.  222. 

2Burnes  v.  Burnes,  61  App.  612.  8  Miner  v.  Tilley,  54  App.  627;  Dies- 

■■■  Wash    v.    Randolph,    9  Mo.    142;  ing  v.  Reilly,  77  App.  450;  Evans  v. 

Clerks'  Savings  Bank  v.   Thomas,  2  Chicago  &  Alton  R.  Co.,  76  App.  468. 
App.  367.  9  State  v.  May,  142  Mo.  135. 

*  See  3  Pattison's  Digest,  New  Trial,       10  State  v.  Green,  66  Mo.  631. 
27,  28.  "  Rev.  Stat.  1899. 

5  8  App.  577.  12  Diesing  v.  Reilly,  77  App.  450. 

6  8  App.  585. 


§§  47-50.]    GENERAL  RULES  GOVERNING  PLEADING.  51 

§  47.  When  defendant  must  plead. —  The  statute  requires  that 
every  defendant  who  is  summoned  or  notified  according  to  law 
shall  demur  to  the  petition  or  answer  it  on  or  before  the  third 
day  of  the  term  at  which  he  is  bound  to  appear,  unless  longer 
time  is  granted  by  the  court.1  The  above  section  taken  as  a 
whole  is  most  awkwardly  worded  and  is  unnecessarily  prolix.  This 
grows  out  of  the  fact  that  it  is  the  result  of  successive  amend- 
ments of  the  earliest  statute  on  the  subject,  and  that  the  amend- 
ments have  been  made  by  changes  and  additions  instead  of  by 
entirely  rewriting  the  section.2  The  defendant  has  all  of  the 
days  prescribed  by  the  statute,  including  the  whole  of  the  last 
day  designated,  in  which  to  plead,  if  the  term  lasts  so  long.3  If  a 
party. who  has  not  been  served  with  process  appears  voluntarily 
in  the  course  of  the  term,  he  is  entitled,  after  his  appearance,  to 
the  number  of  days  prescribed  in  the  statute  for  the  purpose  of 
pleading.4  The  time  for  pleading  is  the  same  in  attachment 
suits  as  in  those  commenced  by  ordinary  process.5 

§  48.  Same  —  Cross-bill  by  one  defendant  against  another. — 
Where  one  defendant  files  a  cross-bill  against  another,  the  latter 
is  entitled  to  sufficient  time  to  plead  to  the  cross-bill,  at  least  to  as 
much  time  as  would  be  allowed  him  to  plead  to  a  petition  by  the 
plaintiff.6 

§  49,  When  plaintiff  must  reply. —  The  time  allowed  plaint- 
iff for  demurring  or  replying  to  new  matter  in  the  answer  is  to 
be  prescribed  by  rule  or  order  of  the  court  in  which  the  cause  is 
pending.7  If  the  defendant  files  his  answer  before  the  expira- 
tion of  the  time  limited  by  the  statute  for  that  purpose,  the 
plaintiff  is  nevertheless  bound  to  file  his  reply  within  the  pre- 
scribed time  after  the  answer  is  actually  filed,  and  not  after 
the  time  prescribed  by  the  statute  for  the  filing  of  the  answer.8 

§  50.  Filing  pleadings  out  of  time.— The  statute  provides 
that  courts  may  for  good  cause  and  in  furtherance  of  justice  ex- 
tend the  time  prescribed  by  the  statute  for  filing  any  pleading 
or  motion  upon  such  terms  as  shall  be  just.9    This  leaves  the  time 

i  Rev.  Stat.  1899,  sec.  597.  »Farrington  v.  McDonald,  28  Mo. 

2  For  the  course  of  legislation  on    581. 

this  subject  consult  Rev.  Stat  1855,  G  Tucker  v.  St.  Louis  Life  Ins.  Co., 

p.  1230;  Gen.  Stat.  1865,  p.  658;  Rev.  63  Mo.  588. 

Stat.  1889,  sec.  2042;  Rev.  Stat.  1899,  7Rev.  Stat.  1899,  sec.  608. 

sec.  597.  8  Beach  v.  Curie,  15  Mo.  105;  Arnold 

3  Hart  v.  Walker,  31  Mo.  26;  Brack-  v.  Palmer,  23  Mo.  411. 

ett  v.  Brackett,  61  Mo.  221.  9  Rev.  Stat.  1889,  sec.  617. 

■*  Whiting  v.  Budd,  5  Mo.  443. 


52  GENERAL   RULES   GOVERNING   PLEADING.  [§§  51,  52. 

within  which  pleadings  must  be  filed  to  the  sound  judicial  dis- 
cretion of  the  trial  court.1  And  in  the  absence  of  facts  in  the 
record  showing  that  the  trial  court  was  guilty  of  gross  abuse  of 
its  discretion,  the  appellate  court  will  not  interfere.2  It  has 
been  well  said  by  the  supreme  court  that  the  purposes  of  justice 
are  best  subserved  by  allowing  defendant  to  file  his  answer  at 
any  time  before  a  default  has  been  taken  in  all  cases  where  he 
has  a  real  defense  to  make,  if  such  course  will  neither  create  de- 
lay nor  prejudice  the  just  rights  of  the  plaintiff,  especially  where 
there  is  no  reason  to  believe  that  the  failure  of  defendant  to  an- 
swer was  wilful  or  that  he  had  any  improper  purpose  in  view.3 
In  one  case  the  supreme  court  reversed  the  judgment  and  re- 
manded the  cause  because  this  was  not  allowed.4  It  is  no  abuse 
of  the  discretion  of  the  trial  court  to  permit  an  answer  to  be  filed 
as  late  as  nine  days  after  the  case  is  set  for  trial,  where  no  default 
has  been  entered,  and  where  defendant's  affidavit  shows  a  good 
cause  for  the  delay.5  On  the  other  hand,  it  is  not  an  unsound 
exercise  of  discretion  to  refuse  leave  to  file  an  answer  where  de- 
fendant does  not  show  that  he  has  a  meritorious  defense.6  In 
one  case  where  plaintiff's  counsel  told  the  counsel  of  defendant 
that  he  might  take  all  the  time  he  pleased  to  file  his  pleading,  it 
was  held  that  the  reasonable  construction  of  such  a  permission 
was  that  defendant  was  to  have  all  the  time  to  plead  that  could 
be  allowed  consistently  with  the  due  and  orderly  progress  of  the 
cause  to  trial  under  the  law  and  the  rules  of  the  court.  Such  a 
privilege  cannot  extend  beyond  the  day  on  which  the  cause  is 
actually  called  for  trial.7 

§51.  Same  —  Demurrer  or  reply. —  It  is  within  the  discre- 
tion of  the  trial  court  to  allow  defendant  to  file  a  demurrer  after 
the  time  ordinarily  fixed  for  the  purpose  has  elapsed.8  A  reply 
may,  by  permission  of  the  court,  be  filed  at  anytime  before  trial.9 

§  52.  Filing  reply  at  trial. —  Where  the  answer  contains  new 
matter,  and  no  reply  has  been  filed,  and  no  action  has  been  taken 
by  the  defendant  for  judgment  on  the  new  matter,  it  is  invari- 
ably held  that  plaintiff  may  file  a  reply  by  way  of  general  de- 
nial even  at  the  trial;10  especially  if  the  failure  to  file  the  reply 

1  State  to  use  v.  Matlock,  82  Mo.  455.        6  Hallowell  v.  Page,  24  Mo.  590. 

2  Austin  v.  Boyd,  28  App.  52.  '  Robyn  v.  Chronicle  Pub.  Co.,  127 

3  State  v.  Bird,  23  Mo.  470;  Cooney    Mo.  385. 

v.  Murdock,  54  Mo.  349.  8  Peak  v.  Laughlin,  49  Mo.  162. 

4Judah  v.  Hogan,  67  Mo.  252.     See  9  Rhine  v.  Montgomery,  50  Mo.  566. 

also  Cooney  v.  Murdock,  54  Mo.  349.  i»  Ennis  v.  Hogan,  47  Mo.  513,  and 

5  State  to  use  v.  Matlock,  82  Mo.  405.  the  other  cases  cited  below. 


§§  53,  54.]    GENERAL  RULES  GOVERNING  PLEADING.  53 

is  the  result  of  accident  or  inadvertence.1  He  may  file  such 
reply  after  the  jury  is  sworn  and  the  pleadings  have  been  read,2 
and  even  after  the  evidence  on  both  sides  is  closed,3  and  even 
after  verdict.4  But  after  an  appeal  is  taken  the  reply  cannot  be 
filed  nunc  pro  tunc!'  He  may  at  the  trial  be  permitted  to  file  a 
reply  to  a  counter-claim,  even  after  defendant  has  asked  an  in- 
struction that  the  counter-claim  is  confessed  by  a  failure  to  reply 
to  it.6 

§  53.  Treating  reply  as  filed. —  If  no  notice  is  taken  by  either 
party  of  the  fact  that  the  reply  has  not  been  filed,  but  the  cause 
is  tried  as  if  plaintiff  had  entered  a  general  denial  to  the  new 
matter  in  the  answer,  the  courts  will  treat  the  case  as  though  a 
reply  by  way  of  general  denial  had  been  duly  filed ;  and  it  is 
too  late  after  verdict  for  defendant  to  take  advantage  of  the 
want  of  a  reply.7  By  the  very  fact  that  defendant  introduces 
evidence  in  support  of  the  new  matter  pleaded  in  his  answer, 
and  submits  such  evidence  to  the  jury  by  instruction,  he  waives 
whatever  rights  he  might  have  in  consequence  of  the  lack  of  a 
reply.8  And  it  is  held  that  these  rules  apply  not  only  to  cases 
where  the  reply  has  been  inadvertently  omitted,  but  even  to 
those  where  a  motion  for  judgment  for  want  of  a  reply  has  been 
overruled.9  And  they  apply  also  to  trials  of  issues  of  fact  before 
referees.10 

§  54.  When  leave  is  granted  to  file  a  pleading  of  one  char- 
acter a  pleading  of  another  character  should  not  be  substi- 
tuted.—  It  seems  to  be  the  rule  that  where,  after  the  time  for 
pleading  has  elapsed,  a  party  obtains  leave  to  file  a  particular 
pleading  he  must  file  that  pleading  and  no  other.11     In  the  case 

1  Blondeau  v.  Sheridan,  81  Ma  545.        6  Hale  v.  Skinner,  33  Mo.  452. 

2  Cole  v.  Chicago,  B.  &  Q.  R  Co.,  47  7  Howell  v.  Reynolds  County,  51 
App.  624.  Mo.  154;  Heath  v.  Goslin,  80  Mo.  310; 

8Sheehan  Trans.  Co.  v.  Sims,  36  App.  Miller  v.  Harper,  63  App.  293;  Meader 

224.  v.  Malcolm,  78  Mo.  550;  Turner  v.  But- 

*  Foley  v.  Alkire,  52  Mo.  317;  Heath  ler,  126  Ma  131;  Ferguson  v.  David- 

v.  Goslin,  80  Mo.  310;  Turner  v.  But-  son,  147  Ma  664 

ler,  126  Ma  131.  8  Crow  v.  Chicago  &  Alton  R  Co., 

»  Ladd  v.  Couzins,  35  Mo.  513.    But  57  App.  135. 

this  is  placed  upon  the  ground  that  9  Nelson  v.  Wallace,  48  App.   193; 

the  trial  court  had  then  no  jurisdio  Hale  v.  Skinner,  33  Mo.  452. 

tion  over  the  case;  and  that  this  is  10  Turner  v.  Butler,  126  Mo.  131. 

the  only  reason  for  the  ruling  is  ap-  n  Cooney  v.  Murdock,  54  Mo.  349. 
parent  from  the  decisions  collected 
in  the  next  section. 


54c  GENERAL   RULES   GOVERNING   PLEADING.         [§§  55,  56. 

cited  the  defendant  obtained  leave  to  file  an  answer  in  vacation, 
and  instead  of  Sling  an  answer  filed  a  demurrer,  which,  on  mo- 
tion of  the  plaintiff,  was  stricken  out  on  the  ground  that  it  was 
the  well  settled  rule  of  practice  of  that  court  not  to  permit  a 
party  to  file  any  pleading  in  vacation  differing  in  character 
from  the  one  for  which  leave  was  granted.  This  action  the 
supreme  court  held  to  be  correct.  But  the  next  ruling  of  the 
lower  court  the  supreme  court  did  not  approve.  For  defendant, 
immediately  after  the  demurrer  was  stricken  out,  tendered  his 
answer  and  requested  leave  to  file  that,  which  the  court  refused, 
and  entered  up  judgment  for  the  plaintiff.  The  supreme  court 
holds  this  latter  action  to  have  been  an  abuse  of  discretion,  the 
answer  showing  a  meritorious  defense.1 

§  55.  Substituting  one  pleading  for  another . —  There  is  no 
abuse  of  discretion  in  refusing  permission  to  the  defendant  to 
withdraw  his  answer  during  the  trial  and  to  file  in  its  place  a 
demurrer  to  the  petition.2 

§  56.  Taking  default. —  If  the  county  has  over  forty  thousand 
inhabitants  the  cause  is  triable  at  the  return  term ;  and  if  the  de- 
fendant makes  default  plaintiff  is  entitled  to  his  assessment  of 
damages  and  final  judgment  at  such  term.  In  counties  having 
forty  thousand  inhabitants  or  less,  if  defendant  has  been  served 
thirty  days  before  the  first  day  of  the  term,  or  if  the  action  is 
founded  upon  a  bond,  bill  or  note,  it  is  triable  at  the  return  term. 
If  the  action  is  founded  upon  an  open  account  or  upon  an  account 
stated,  and  the  items  are  set  forth  in  or  annexed  to  the  petition, 
and  a  copy  of  the  account  is  delivered  to  the  defendant,  the 
action  is  triable  at  the  return  term,  and  if  defendant  makes 
default  he  thereby  admits  the  correctness  of  the  account  as  set 
forth  in  or  annexed  to  the  petition,  and  final  judgment  may  be 
rendered  against  him  at  the  time  of  entering  the  default.3  If 
the  answer  of  the  defendant  contains  new  matter,  and  plaintiff 
does  not  demur  or  reply  to  it  within  the  time  prescribed  by  the 
rule  or  order  of  the  court,  such  judgment  shall  be  rendered  as 
defendant  is  entitled  to  upon  the  statement  of  new  matter;  and, 
if  the  case  requires  it,  a  writ  of  inquiry  of  damages  may  issue.4 
Thus,  where  the  answer  confesses  the  cause  of  action  and  pleads 
matter  in  avoidance,  a  failure  by  plaintiff  to  demur  or  reply 
within  the  time  prescribed  entitles  defendant  to  a  judgment.5 

i  Cooney  v.  Murdock,  54  Mo.  349.  <  Rev.  Stat.  1899,  sec.  608. 

2  Fadley  v.  Smith,  23  App.  87.  5  Cordner  v.  Roberts,  58  App.  440. 

3  Rev.  Stat.  1899,  sec.  597. 


§§  57,  58.]    GENERAL  RULES  GOVERNING  PLEADING.  55 

§  57.  Setting  aside  default.— There  are  cases  where  the  ap- 
pellate court  will  review  the  discretion  of  the  trial  court  in  refus- 
ing to  set  aside  a  default.  For,  as  it  is  said  in  Tucker  v.  St. 
Louis  Life  Ins.  Co.,1  "  it  should  be  the  policy  of  courts  to  try 
cases  on  their  merits,  wherever  such  a  course  will  not  result  in 
hurtful  delay."  (p.  593.)  This  subject,  however,  more  properly 
belongs  in  a  treatise  on  Practice. 

§  58.  Lost  pleadings,— If  pleadings  are  lost  or  destroyed  they 
may  be  replaced  nunc  pro  tunc,  so  long  as  the  cause  remains  in 
the  same  court.2  Sections  4560  et  seq?  provide  a  method  by  which 
the  court  may  restore  its  lost  records.  But  a  court  has  the  power 
independent  of  the  statute  to  supply  its  missing  papers,  records 
or  files ;  if,  however,  it  is  known  that  they  are  in  the  possession 
of  any  person,  notice  must  be  first  given  to  such  person  to  pro- 
duce them.4  Lost  records  can  only  be  supplied  by  an  order  of 
court.  And  if  the  entry  does  not  contain  an  order  for  the  sub- 
stitution of  another  record  or  paper  in  the  place  of  the  one  lost, 
but  merely  shows  that  such  record  or  paper  sought  to  be  substi- 
tuted was  presented  to  the  court  as  a  copy  of  the  missing  one 
and  filed  in  the  cause,  this  is  not  sufficient.5  The  above  sections 
do  not  apply  to  a  bond  given  on  an  appeal  from  a  justice  of  the 
peace;  if  such  a  bond  is  lost,  its  contents  may  be  proved  by  parol.6 

1 63  Mo.  588.  5  Newton  v.  Strang,  48  App.  538. 

2  Chambers  v.  Astor,  1  Mo.  327;  St.  fCompton  v.  Arnold,  54  Mo.  147. 

Louis,  Cape  G.  &  Ft.  S.  R.  Co.  v.  Hoi-  That  an  action  or  a  defense  may  be 

laday,  131  Mo.  440.  maintained  on  a  lost  instrument,  see 

a  Rev.  Stat.  1899.  §§  338,  724,  post. 

*  St.  Louis,  Cape  G.  &  Ft.  S.  R.  Co. 
v.  Holladay,  131  Mo.  440. 


CHAPTER  IV. 

WHAT  SHOULD  BE  STATED  IN  PLEADING. 


59.  The  rules  are  to  be  found  in  the 

Code  itself. 

60.  Pleading  defined. 

01.  The  Code  requires  pleadings  to 

be  special. 
62.  Facts  must  be  directly  averred. 

03.  Exceptions  to  general  rule. 

04.  What  is  a  sufficient  statement. 

05.  The  office  of  pleadings. 
00.  Naming  parties. 

07.  Forms. 


§  08.  Only  one  form  of  action. 
09.  Form  of  the  prayer. 

70.  Alternative  pleading. 

71.  Both  alternatives  must  be  good. 

72.  Matter    which    is    peculiarly 

within  the  knowledge  of  one 
of  the  parties. 

73.  Averments  must  be  consistent. 

74.  Surplusage. 

75.  Surplusage  in  answer. 


§  59.  The  rules  are  to  be  found  in  the  Code  itself. —  I  have 
said  in  the  introductory  chapter  that  the  Code  of  Procedure  was 
not  intended  to  be  a  modification  of  the  common-law  procedure, 
but  that  it  was  a  radical  departure  from  the  common-law  prac- 
tice; that  it  was  not  a  reform  of  old  methods,  but  a  new  method. 
In  no  particular  is  this  intention  more  clearly  shown  than  in  the 
section  laying  down  the  general  principles  upon  which  pleadings 
are  to  be  decided.  Section  591 l  provides,  in  language  of  unmis- 
takable import,  that  the  Code  itself  is  to  furnish  the  rules  by 
which  the  validity  and  effect  of  pleadings  are  to  be  determined 
in  this  state.  Yet  it  is  only  by  gradual  steps  that  the  courts  have 
been  led  to  accept  the  reformed  system  in  its  letter  and  spirit. 
In  this  respect  the  advance  has  not  been  uniform.  At  times  there 
has  been  a  distinct  and  marked  retrogression.  As  will  be  seen 
in  subsequent  chapters,  there  has  developed  in  some  of  the  very 
recently  decided  cases  an  inclination  to  return  to  the  most  rigid 
rules  of  the  common  law.  But,  on  the  whole,  the  rulings  mani- 
fest a  determination  to  adopt  a  liberal  view,  and  to  give  to  the 
Code  such  an  interpretation  as  will  tend  to  work  out  the  benefi- 
cent reform  which  it  was  designed  to  accomplish.  Yet,  while 
I  use  the  term  "liberal,"  I  might  more  properly  say  "strict." 
For  what  is  required  on  the  part  of  the  courts  in  states  which 
have  adopted  the  Code  is  a  strict  adherence  to  its  terms  and  re- 


1  Rev.  Stat.  1899. 


§§  60,  61.]        WHAT    SHOULD   BE   STATED   IN   PLEADING.  57 

quirements.  And  I  believe  that  if  the  courts  should  hold  the 
bar  to  a  strict  compliance  with  its  provisions,  not  only  would  a 
system  be  worked  out  equally  harmonious  with  the  common-law 
system,  but  one  which  would  avoid  the  great  injustice  and  mani- 
fold hardships  which  follow  from  the  common-law  practice, —  a 
system  which  would  as  nearly  as  is  possible  to  any  human  system 
attain  the  object  of  all  legal  proceedings,  the  securing  of  justice  to 
both  adversary  parties  and  the  preventing  either  party  from  ob- 
taining an  undue  advantage.  It  was  the  intention  of  the  framers 
of  the  Code  that  the  system  should  be  complete  in  itself.  This 
seems  to  be  clearly  manifested  by  the  provisions  of  the  first  sec- 
tion of  the  article  on  pleading.1  That  section  provides  that  the 
forms  of  pleading  in  civil  actions  in  courts  of  record,  and  the  rules 
by  which  the  sufficiency  of  the  pleadings  are  to  be  determined, 
are  those  prescribed  by  the  article,  except  where  it  is  otherwise 
specially  provided  by  law.2  Any  attempt,  therefore,  to  engraft 
upon  the  Code  the  rules  of  the  common  law  in  matters  of  form 
or  procedure  is  in  direct  contravention  of  this  express  require- 
ment of  our  statute.  And  an  examination  of  the  adjudged  cases 
in  the  different  code  states,  showing  as  they  do  much  confusion 
and  uncertainty  in  applying  the  provisions  of  the  practice  act, 
will  go  far  to  convince  the  practitioner  that  it  is  exceedingly  un- 
fortunate that  the  courts,  in  passing  upon  questions  of  form  in 
pleading,  should  have  been  at  all  governed  by  the  analogies  drawn 
from  the  common  law. 

§60.  Pleading  denned. —  In  Edgell  v.  Sigerson%  it  is  said: 
"  The  common-law  definition  of  a  pleading  is  '  the  statement  in 
a  logical  and  legal  form  of  the  facts  which  constitute  the  plaint- 
iff's cause  of  action  or  the  defendant's  ground  of  defense,'  which 
is  the  very  language  used  by  our  Code  in  defining  a  complaint 
and  answer.  Facts,  and  facts  only,  are  to  be  stated.  The  pleader 
must  not  descend  into  a  mere  detail  of  the  evidence,  nor  stop 
short  at  general  conclusions  of  law,  but  must  set  down  the  issu- 
able facts,  and  them  only."  The  statute  provides  that  no  allega- 
tions shall  be  made  in  a  pleading  which  the  law  does  not  require 
to  be  proved,  and  that  only  the  substantive  facts  necessary  to 
constitute  the  cause  of  action  or  the  defense  are  to  be  stated.4 

§61.  The  Code  requires  pleadings  to  be  special. —  The  in- 
tention of  the  practice  act  is  to  make  all  pleadings  special,  and 

1  Rev.  Stat.  1899,  sec.  591.  *  20  Mo.  494.  " 

*Stillwell  v.  Hamm,  97  Mo.  579,  585.        *R.  S.  1899,  sec.  G10. 


58  WHAT   SHOULD   BE    STATED    IN   PLEADING.         [§§  62,  63. 

to  abolish  all  general  averments  which  state  merely  conclusions 
of  law.  In  other  words,  the  design  of  code  pleading  is  that  there 
should  be  a  statement  of  all  the  facts  necessary  to  make  out  a 
cause  of  action,  omitting  all  mere  evidence  and  all  conclusions 
of  law.1  Therefore,  whatever  is  essential  to  be  proved  must  be 
alleged  in  the  pleadings.2  And  though  the  pleadings  are  not 
now  required  to  be  sworn  to,  except  in  certain  special  proceed- 
ings, yet  the  obligation  of  essential  truth  is  as  much  a  requisite 
of  pleading  as  ever,  and  sham  counts  are  as  much  at  war  with 
the  spirit  of  the  Code  as  unnecessary  repetition  is  with  its  letter.3 

§  62.  Facts  must  be  directly  averred. —  All  facts  constituting 
the  cause  of  action  or  the  defense  must  be  directly,  distinctly 
and  definitely  averred,  or,  if  intended  to  be  traversed,  unequivo- 
cally denied,  so  that  nothing  shall  be  left  to  conjecture  or  infer- 
ence.4 And  the  material  facts  should  be  distinctly  and  not 
inferentially  alleged,  since  the  court  will  not  supply  by  intend- 
ment an  averment  which  the  pleader  has  failed  to  make.5  It  is 
said  by  Sherwood,  J.,  in  Huston  v.  Tyler,6  that  the  fundamental 
requirements  of  good  pleading  are  and  must  remain  the  same, 
whether  under  code  or  at  common  law.     (p.  264.) 

§63.  Exceptions  to  general  rule. —  There  are  some  special 
cases  where  the  rules  of  pleading  do  not  require  even  the  con- 
stitutive or  ultimate  facts  to  be  pleaded,  but  where  the  pleader 
merely  states  the  conclusion  of  law  upon  which  his  right  to  relief 
rests.  Such  are  the  possessory  actions  of  replevin  and  ejectment, 
where  plaintiff  merely  states  that  he  is  entitled  to  the  possession 
of  a  certain  chattel  or  of  a  certain  piece  of  land,  and  that  defend- 
ant unjustly  detains  it  from  him.  There  are  undoubtedly  other 
cases  where  the  law  proceeds  so  far  in  the  opposite  direction  as 
for  greater  certainty  to  require  the  pleading  of  what  may  be 
called  evidentiary  facts.  But  the  general  rule  lies  between 
these  two  extremes.  That  general  rule  is  that  the  pleading  sus- 
tains a  twofold  office:  First,  to  advise  the  opposite  party  of  the 
state  of  the  case  which  he  is  called  upon  to  meet;  second,  to  state 
a  collection  of  constitutive  facts  upon  which  the  plaintiff,  as  a 

iGamage  v.   Bushell,  1  App.  416;  668.    That  this,  however,  does  not  ab- 

Scott  v.  Robards,  67  Mo.  289;  Pier  v.  rogate  the  rule  that  the  facts  which 

Heinrichoffen,  52  Mo.  333.  are  necessarily  inferred  from  the  facts 

-  McConey  v.  Wallace,  22  App.  377.  pleaded  will  be  held  to  have  been 

3Druiding  v.  Lyon,  7  App.  19{J.  averred,  will  be  shown  hereafter.    See 

4  Bredell  v.  Alexander,  8  App.  110.  §  117,  post. 

a  Cook  v.  Putnam  County,  70  Mo.  « 140  Mo.  25a 


§§  64:,  65.]        WHAT  SHOULD   BE    STATED    IN   PLEADING.  59 

legal  conclusion,  is  entitled  to  relief,  to  the  end  that,  if  those 
facts  are  deemed  insufficient  in  law  by  the  defendant,  he  may 
challenge  them  by  a  demurrer,  and  thus  possibly  avoid  the  expense 
and  vexation  of  a  trial.1  Both  of  these  offices  of  pleading  must  fn 
general  be  fulfilled.  Thus,  in  an  action  of  replevin,  though  the 
statute  only  mentions  that  the  plaintiff  must  be  entitled  to  the 
possession  of  the  chattel,  yet  a  petition  is  not  good  unless»it  shows 
that  this  right  to  possession  is  based  upon  a  property,  either  gen- 
eral or  special,  in  the  plaintiff.2 

§64.  What  is  a  sufficient  statement. —  Though  the  aver- 
ments of  a  pleading  may  be  grammatically  incorrect,  yet  they 
are  not  on  that  account  necessarily  insufficient.3  The  rule  of 
pleading  under  the  Code  is  that,  by  taking  the  language  in  its 
plain  and  ordinary  meaning,  such  an  interpretation  should  be 
given  to  it  as  fairly  appears  to  have  been  intended  by  the 
pleader.4  A  pleading  ought  to  be  held  good  if  it  so  fully  advises 
the  opponent  of  the  nature  of  the  demand  or  defense  that  the 
latter  will  not  be  misled.5  While  it  may  appear  that  the  rules 
of  pleading  are  technical  and  often  strict,  yet  these  rules  do  not 
rest  alone  on  the  arbitrary  will  of  the  lawmaker,  but  are  founded 
in  that  sense  of  justice  which  recognizes  the  right  of  every  party 
to  a  suit  to  require  of  his  adversary  a  clear  and  unequivocal 
statement  of  his  side  of  the  case.  If  this  right  is  demanded  in 
due  form  and  in  season,  it  must  be  heeded  as  a  demand  of  jus- 
tice, and  it  is  no  answer  to  say  that  the  demand  is  technical. 
But,  on  the  other  hand,  justice  will  not  allow  a  party  to  lie  in 
wait  for  his  adversary  to  take  his  chances  on  a  verdict,  and  then, 
if  it  be  against  him,  profit  by  the  strict  technicality  of  the  science 
of  pleading,  if  a  liberal  construction  can  obviate  the  objection.6 

§  65.  The  office  of  pleadings. —  It  is  the  office  of  pleadings  to 
set  forth  causes  of  actions  and  defenses  whose  legal  sufficiency 
is  always  a  question  of  law.7  The  issues  in  a  cause  must  be  raised 
by  the  pleadings,  and  cannot  be  enlarged  by  the  evidence  or  by 

1  Loehr  v.  Murphy,  45  App.  519.  c  Cobb  v.  Lindell  R.  Co.,  149  Mo.  135; 

2  Benedict  Mfg.  Co.  v.  Jones,  60  App.  Oglesby  v.  Mo.  Pac.  R.  Co.,  150  Mo.  137. 
219.  Other  illustrations  of  this  doc-  An  example  of  a  pleading  which  most 
trine  will  be  found  in  chapters  XIII  glaringly  fails  to  contain  "a  plain  and 
and  XV.  concise  statement  of  the  facts  "  will 

3  Parsons  v.  Mayfield,  73  App.  309.  be  found  in  the  answer  set  up  in  Ly- 

4  Hickory  County  v.  Fugate,  143  Mo.  man  v.  Campbell,  34  App.  213,  on  pp. 
71.  218-220. 

BWilcoxson  v.  Darr,  139  Mo.  6G0,  ?  Worthington  v.  Lindell  R.  Co.,  72 
675.  App.  162. 


60  WHAT   SHOULD    BE   STATED   IN   PLEADING.         [§§  06,  67. 

the  instructions,  or  by  both  combined.1  "While  the  use  of  formal 
and  technical  averments,  which  were  necessary  at  common  law 
to  the  statement  of  a  cause  of  action,  have  been  dispensed  with 
by  the  Code  and  are  no  longer  necessary,  the  same  material  alle- 
gations are  necessary  as  at  common  law.2 

§  66.  Naming:  parties. —  In  all  proceedings  the  christian  and 
surname  of  both  plaintiff  and  defendant  should  be  set  forth  in 
the  pleadings  with  accuracy.3 

§  67.  Forms. —  Questions  relating  to  the  forms  of  actions  will 
continually  crop  out  in  every  part  of  this  work.  Yet,  except  in 
some  special  pleadings,  in  which  the  statute  makes  form  essential 
by  expressly  prescribing  what  it  shall  be,  the  code  pleading  has 
nothing  to  do  with  forms.  Herein  lies  an  essential  distinction 
between  the  former  practice  and  the  present  —  a  distinction  which 
cannot  be  too  earnestly  insisted  on.  At  common  law,  form  was 
at  least  of  equal  importance  with  substance.4  Says  one  of  the 
best  known  writers  on  the  rules  governing  pleadings  at  common 
law:  "There  are  two  indispensable  requisites  to  all  good  plead- 
ing: first,  that  the  matter  pleaded  be  sufficient  in  law  to  avail  the 
party  who  pleads  it ;  and  second,  that  it  be  deduced  and  alleged 
according  to  the  forms  of  law.  And  if  either  of  these  requisites 
is  omitted,  the  pleading  is  ill.  For  all  pleading  is  required  to  be 
sufficient,  not  only  in  substance  but  in  form  also.  By  which 
latter  term  we  are  here  to  understand  those  technical  or  artificial 
modes  of  introducing  and  detailing  the  subject-matter  pleaded 
which  have  been  established  by  usage,  and  which  cannot  be  dis- 
pensed with  without  impairing  that  certainty,  regularity  and 
uniformity  which  are  essential  in  all  judicial  proceedings." 5  And 
on  a  subsequent  page  he  makes  the  following  important  additional 
statement:  "What  is  termed  ' form '  in  pleading  constitutes  no 
distinct  matter,  but  simply  the  manner  in  which  the  matter 
pleaded  is  stated."  (p.  41.)  As  to  this  manner  of  stating  the 
matter  pleaded  the  Code  is  express;  it  must  be  a  plain  and  con- 
cise statement  of  the  facts  constituting  the  cause  of  action  or 
defense,  without  unnecessary  repetition.6 

1  Christian  v.  Conn.  Mut.  Life  Ins.  4  Sumner  v.  Tuck,  10  App.  269,  276. 
Co.,  143  Mo.  460.  s  Gould  on  Pleading  (4th  ed.),  p.  38. 

2  Citizens'  Bank  v.  Tiger  Tail  Mill  &  6  Tn  the  Revised  Statutes  of  1855, 
Land  Co.,  152  Mo.  145.  forms  of  various  kinds  are  set  out, 

3  Turner  v.  Gregory,  151  Mo.  100.  forms  for  pleading  in  courts  of  record 
This  point  is  more  fully  considered  in  and  before  justices.  Those  forms,  with 
chapter  XL  additions,  have  been  continued  in  the 


§  68.]  WHAT    SHOULD    BE    STATED    IN    PLEADING.  61 

§  68.  Only  one  form  of  action. —  There  is  in  this  state  but  one 
form  of  action  for  the  enforcement  or  protection  of  private  rights 
and  the  redress  or  prevention  of  private  wrongs,  which  is  de- 
nominated a  civil  action.1  No  language  can  be  more  positive 
and  express  than  this.  If  section  539  does  not  abolish  all  dis- 
tinctions between  forms  of  action,  it  is  because  it  is  impossible 
to  abolish  those  distinctions.  And  such  an  impossibility  no  one 
will  assert.  The  distinctive  principles  governing  different  causes 
of  action  cannot  be  abolished.  They  are  inherent.2  But  it  is 
possible,  it  is  easy,  to  express  them  all  in  one  way ;  i.  e.,  by  simply 
stating  the  facts  which  constitute  the  particular  cause  of  action 
in  plain  and  concise  terms.  As  is  said  by  Lewis,  P.  J.,  in  Sumner 
v.  Tuck:3  "In  a  code  system  the  jurisdiction  looks  first  of  all  to 
the  fact  of  a  grievance  demanding  redress,  and,  asking  no  ques- 
tion about  the  particular  form  in  which  the  demand  is  made,  de- 
clares that  one  form,  the  civil  action,  shall  suffice  for  any  and 
every  case  wherein  the  grievance  and  the  right  of  redress  shall 
plainly  appear."  (p.  276.)  But  I  repeat,  while  the  common-law 
forms  have  been  abolished,  it  by  no  means  follows  that  the  law 
governing  the  actions  in  which  the  forms  were  used  has  been 
changed.  In  a  case  decided  in  1870  Judge  Wagner  said :  "  While 
the  difference  in  form  and  the  technicalities  in  pleading  have 
been  dispensed  with,  and  the  party  need  only  state  his  cause  of 
action  in  ordinary  and  concise  language,  whether  it  be  under 
assumpsit,  trover,  trespass  or  ejectment,  without  regard  to  the 
ancient  forms,  still  the  distinction  between  these  actions  has  not 
been  destroyed  but  remains  the  same."4  So  too  the  rule  applies 
to  the  distinction  between  common-law  actions  ex  contractu  and 
ex  delicto.5 

Nevertheless,  it  remains  true  that  if  the  facts  alleged  are  suffi- 
cient to  warrant  a  recovery,  it  makes  no  difference  whether  the 
action  be  called  one  in  assumpsit  or  a  special  action  on  the  con- 
various  revisions  down  to  the  present  *Rev.  Stat.  1899,  sec.  539;  Clark  v. 
time.  It  has  never  been  contended  Clark,  86  Mo.  114;  Knipper  v.  Blumen- 
that  the  forms  in  question  had  legis-  thai,  107  Mo.  665. 
lative  sanction,  or  even  judicial  sane-  2  Sumner  v.  Rogers,  90  Mo.  324,  329. 
tion.     Yet,  as  they  have  been  in  more        3 10  App.  269. 

or  less  constant  use  and  have  been        4Magwire  v.  Tyler,  47  Mo.  115,  128. 
continued  in  the  successive  revisions,    The  same  doctrine  is  announced  in 
it  has  been  held  that  they  are  not    Huston  v.  Tyler,  140  Mo.  252,  263. 
without  persuasive  force.   Warnick  v.        5  Sumner  v.  Rogers,  90  Mo.  324,  329. 
Baker,  42  App.  439,  442. 


62  WHAT   SHOULD   BE    STATED   IN    PLEADING.         [§§  69,  70. 

tract.1  As  illustrating  this  rule,  take  the  case  of  goods  sold  to  be 
paid  for  by  note  or  bill.  At  common  law  if  the  purchaser  failed 
to  give  the  note  or  bill,  the  vendor  could  not  maintain  assumpsit 
on  the  general  count  for  goods  sold  and  delivered  until  the  time 
had  expired  for  which  the  note  or  bill  was  to  run;  but  he  might 
immediately  bring  an  action  for  breach  of  the  special  agreement, 
and  his  damages  would  be  the  price  of  the  goods.  Inasmuch  as 
the  Code  abolishes  the  old  forms  of  action,  a  petition  is  good  if 
such  facts  appear  in  it  as  would  justify  a  judgment  at  common 
law  uuder  either  of  the  above  forms  of  action.1 

§69.  Form  of  the  prayer. —  There  is  one  class  of  cases  in 
which  it  may  with  some  truth  be  said  that  the  form  is  of  impor- 
tance. But  in  those  cases  it  is  not  so  much  the  form  of  the  plead- 
ing as  a  whole  as  the  form  of  the  prayer  for  relief  which  is  in 
question.  For  it  is  often  of  importance  to  all  concerned  to  know 
what  relief  plaintiff  demands,  in  order  to  determine  the  proper 
constitutional  mode  of  trial.  On  this  account  it  is  sometimes 
necessary  to  recur  to  the  inherent  distinctions  between  legal  and 
equitable  rights  and  remedies,  and  to  insist  that  parties  asking 
aid  of  the  court  shall  state  the  nature  of  the  relief  desired  as  well 
as  the  facts  on  which  they  demand  it.2  If  the  petition  is  framed 
on  the  theory  that  it  is  sought  to  enforce  equitable  rights,  and  it 
appears  on  the  trial  that  the  plaintiff  has  no  equities  which  the 
court  is  bound  to  enforce,  the  bill  must  be  dismissed.  And  this 
for  the  reason  that  defendant  is  entitled  to  a  trial  of  the  issues 
by  a  jury,  and  plaintiff  will  not  be  allowed  to  deprive  him  of 
this  statutory  right  by  adopting  an  equitable  form  of  procedure.3 
This  point  has,  however,  been  fully  discussed  in  the  chapter  on 
Legal  and  Equitable  Proceedings  (ch.  I),  and  will  also  receive 
some  notice  in  chapter  XIY,  and  need  be  only  mentioned  here. 

§  70,  Alternative  pleading.—  Either  party  may  allege  any 
fact  or  title  alternatively,  declaring  his  belief  of  one  alternative 
or  the  other,  and  his  ignorance  of  whether  it  be  one  or  the 
other.4  This  section  is  not  to  be  construed  as  permitting  a  party 
to  plead  conditionally  or  in  the  alternative.5  Much  less  can  a 
plaintiff  ask  in  his  petition  that  if  he  should  have  mistaken  his 
remedy,  and  should  have  failed  to  obtain  the  relief  he  has  prayed 

i  Globe  Light  &  Heat  Co.  v.  Doud,  Humphreys  v.  Atlantic  Milling  Co.,  98 

47  App.  439.  Mo.  542. 

2  Rush  v.  Brown,  101  Mo.  586,  591.  *  Rev.  Stat.  1899,  sec.  626. 

3  Rutherford  v.  Williams,  42  Mo.  18;        8  Bauer  v.  Wagner,  39  Mo.  385. 


§§   71,  72.]        WHAT    SHOULD    BE    STATED    IX    PLEADING.  63 

for,  another  and  a  different  cause  of  action  may  be  tried.1  Thus, 
if  a  suit  is  brought  to  enforce  a  trust  with  reference  to  specific 
property,  and  plaintiff  prays  a  divestiture  of  the  title,  and  then 
goes  further  and  asks  that,  if  the  court  should  refuse  his  prayer, 
the  rights  of  plaintiff  and  defendant  may  be  ascertained  and  a 
partition  and  division  be  decreed  accordingly,  such  relief  will 
not  be  granted.2  And  where  an  action  of  replevin  is  brought, 
plaintiff  cannot  ask  that  if  his  claim  to  the  property  is  defeated 
he  may  recover  on  a  warranty  of  the  title.3  It  is  questionable 
just  how  far  the  common-law  rule  has  been  changed  by  the  above 
section.4  In  1843,  before  the  adoption  of  the  act,  an  action  was 
brought  against  a  justice  of  the  peace  for  misconduct  in  office, 
and  it  was  alleged  in  the  declaration  that  a  certain  note  on  which 
the  action  had  been  brought  before  the  defendant  was,  through 
his  neglect,  lost  or  destroj^ed.  The  supreme  court  held  that  this 
was  bad  pleading,  and  that  the  plaintiff  should  have  made  two 
counts,  charging  in  one  that  the  note  was  lost  and  in  the  other 
that  it  was  destroj^ed.5  The  statute  makes  no  provision  for  charg- 
ing facts  on  information  and  belief  except  in  alternative  plead- 
ing;6  and  then  the  fact  must  be  positively  alleged,  coupled  with 
an  averment  of  plaintiff's  belief  in  one  or  the  other  alternative 
so  alleged.7 

§  71.  Both  alternatives  must  be  good. —  The  rule  is  that  both 
alternatives  must  be  good  as  matter  of  law.  If  pleaded  by  the 
plaintiff  each  alternative  must  state  a  legal  cause  of  action ;  and 
if  either  of  the  statements  is  insufficient  in  law,  the  entire  plead- 
ing is  defective.8  If  it  is  the  defendant  who  pleads  in  the  alter- 
native, each  of  the  alternatives  must  by  themselves,  if  true,  con- 
stitute a  defense.9 

§  72.  Matter  which  is  peculiarly  within  the  knowledge  of 
one  of  the  parties. —  Matter  more  in  the  knowledge  of  one  party 

1  Robinson  v.  Rice,  20  Mo.  229;  Pen-  lieved  that  one  or  the  other  alterna- 
senneau  v.  Pensenneau,  22  Mo.  27.  tive  was  true,  but  did  not  know  which 

2  Pensenneau  v.  Pensenneau,  22  Mo.  one  was  true,  I  apprehend  that  the 
27.  petition  would  have  been  held  good. 

3  Robinson  v.  Rice,  20  Mo.  229.  6  See  Rev.  Stat.  1899,  sec.  626. 

*  Rev.  Stat.  1899,  sec.  626.  7  Nichols-Shepard  Co.  v.  Hubert,  150 

5  Stone  v.  Graves,  8  Mo.  148.    But  if  Mo.  620.    The  answer  may  deny  any 

the  action  had  been  brought  after  the  knowledge   or  information  sufficient 

adoption  of  the  Code,  and  the  petition  to  form  a  belief  (Rev.  Stat.  1899,  sec. 

had  alleged  that  the  defendant  either  604);  and  so  may  a  reply  (sec.  609). 

negligently  lost  the    note    or  negli-  8  Hewitt  v.  Truitt,  23  App.  443. 

gently  destroyed  it,  that  plaintiff  be-  9  Beall  v.  January,  62  Mo.  434. 


64  WHAT    SIIOULD   BE    STATED    IN   PLEADING.         [§§  73,  74. 

than  the  other  must  be  pleaded  by  the  party  having  that  knowl- 
edge.1  If  the  subject-matter  of  a  negative  averment  lies  pecul- 
iarly •within  the  knowledge  of  the  other  party,  the  averment  is 
taken  as  true,  unless  disproved  by  that  party.2 

§  ?;$.  Averments  must  be  consistent. —  A  plaintiff  will  not  be 
permitted  to  recover  the  fruits  of  an  illegal  transaction,  and  at 
the  same  time  and  in  the  same  suit  obtain  the  benefit  of  a  decree 
annulling  the  transaction.  Therefore,  where  he  seeks  to  recover 
upon  certain  certificates  issued  by  a  bank,  and  at  the  same  time 
attacks  for  illegality  the  transaction  upon  which  the  certificates 
were  issued  and  asks  for  equitable  relief  and  the  appointment  of 
a  receiver  to  wind  up  the  business  of  the  bank,  the  two  positions 
are  so  repugnant  as  to  render  the  petition  bad.3  In  an  action  by 
the  state  on  a  collector's  bond  for  failure  to  pay  into  the  state 
treasury  the  amount  of  certain  taxes  collected  by  him  as  such,  it 
being  alleged  that  the  taxes  belonged  to  the  state  revenue  and 
the  state  interest  fund,  it  is  not  necessary  that  the  petition  should 
go  further  and  negative  the  presumption  that  the  collector  paid 
the  amounts  collected  into  the  county  treasury,  since  such  an 
allegation  would  be  inconsistent  with  the  theory  of  the  case.4 

§  74.  Surplusage. —  Whatever  facts  are  alleged  in  the  petition 
which  are  unnecessary  to  sustain  the  plaintiff's  case  are  mere 
surplusage.5  The  plaintiff  will  not  be  deprived  of  his  verdict  and 
judgment  because  he  has  alleged  too  much,  since  the  surplusage 
may  be  rejected.6  And  this  was  the  rule  at  common  law.7  If 
he  states  more  than  is  required  he  does  not  thereby  forfeit  his 
right  to  recover  upon  proof  of  facts  essential  to  his  right  of  ac- 
tion, if  such  facts  are  set  out  in  his  petition.8  "  It  is  the  settled 
interpretation  of  the  practice  act,"  says  Lewis,  P.  J.,  "  that  if  a 
petition  sets  forth  facts  sufficient  to  constitute  a  cause  of  action, 
the  plaintiff's  right  of  redress  is  not  to  be  prejudiced  by  the  fact . 
that  further  and  unnecessary  statements  are  superadded.  If  he 
states  and  proves  a  right  of  recovery  upon  contract,  he  is  not  to 
be  denied  a  judgment  because  there  are  also  allegations  of  fraud 
or  deceit  which  he  has  failed  to  prove." 9     In  an  action  against  a 

i  Owens  v.  Geiger,  2  Mo.  39.  tion  of  the  petition,  as  well  as  in  the 

2  State  v.  Hathaway,  115  Mo.  36.  body  of  it,  see  §  244,  post. 

3  Mansfield  v.  Bank  of  Monett,  74  6  Koopman  v.  Cahoon,  47  App.  357. 
App.  200.  '  Crocker  v.  Mann,  3  Mo.  472. 

*  State  ex  reh  v.  Seibert,  148  Mo.  408.        8  Walker  v.  Missouri  Pacific  R.  Co., 
&Guinotte   v.   Eidge,  46  App.   251.     68  App.  465. 
That  surplusage  may  exist  in  the  cap-        9  Sumner  v.  Tuck,  10  App.  269,  278. 


§  75.]  "WHAT    SHOULD   BE    STATED    IN   PLEADING.  65 

carrier  the  plaintiff  pleaded  a  verbal  contract  to  furnish  cars  at 
a  given  time,  and  then  proceeded  to  allege  that  the  defendant 
negligently  failed  to  perform  its  contract.  This  allegation  of 
negligence  was  manifestly  surplusage,  and  the  action  on  the  con- 
tract would  not  be  thereby  converted  into  an  action  for  negli- 
gence.1 

§  75.  Surplusage  in  answer. —  Surplusage  in  an  answer  is  no 
ground  for  a  demurrer.2 

1  Gann  v.  Chicago  Great  W.  R.  Co.,  (see  §§  278-282);  also  in  the  chapter  on 

72  App.  34  The  Prayer  (ch.  XIV).    See  also  §§  85, 

The  question  of  surplusage  is  also  97-102,  post. 

incidentally  discussed  in  chapter  XIII  2  Isaacs  v.  Skrainka,  13  App.  593. 
Mo.  Code  Pl.—  5 


CHAPTER  V. 


SAME  SUBJECT  — PLEADING  AND  PROOF. 


§  76.  Facts    not   alleged    cannot    be 
proved. 

77.  The   rule    applies   to   cases    in 

equity. 

78.  Pleading    and  proof  —  Illustra- 

tions. 

81.  Pleading  and  proof  —  Contracts. 

82.  Same —  Contract  made  by  agent. 

83.  Performance. 

84.  In  cases  based  on  negligence. 

85.  Cases  of  negligence  —  Illustra- 

tions. 

87.  The  rule  in  cases  of  negligence 

applies  to  the  answer. 

88.  Recovering  damages. 

89.  Damages  in  attachment  suits. 

90.  Pleading  and  proof  in  actions  for 

slander. 
92.  Same  —  Not  necessary  to  prove 
all  the  words. 


§  93.  Same  —  Foreign  words. 
94  Pleading  and  proof  in  garnish- 
ment proceedings. 

95.  Pleading  and  proof  in  mechan- 

ics' lien  suits. 

96.  The  relief  prayed  for. 

97.  Need  not  prove  all  the  allega- 

tions. 

100.  The  above  rule  applies  to  an  an- 

swer. 

101.  Unnecessary  allegations  may  bo 

so  pleaded  as  to  require  proof 
of  them. 

102.  Cases  in  point. 

103.  Proving  negative  allegations. 

104.  Necessity  of  pleading  waiver. 

106.  Waiver  in  actions  on  insurance 

policies. 

107.  Method  of  pleading  waiver. 


§76.  Facts  not  alleged  cannot  be  proved. —  It  has  always 
been  the  law  in  this  state  that  it  is  erroneous  to  submit  to  the 
jury  an  issue  of  fact  concerning  which  no  allegation  is  made  in 
the  pleadings.  The  trial  issues  must  in  all  cases  be  within  the 
paper  issues.1  No  allegations  are  to  be  made  in  a  pleading  which 
the  law  does  not  require  to  be  proved.2  The  plaintiff  must  state 
the  facts  upon  which  he  bases  his  cause  of  action  as  they  exist; 
he  cannot  set  up  one  state  of  facts  and  recover  upon  another.  If 
he  fails  to  state  facts  sufficient  to  constitute  a  cause  of  action,  he 
cannot  supply  the  defect  by  evidence  at  the  trial.3  If  the  peti- 
tion states  a  cause  of  action  on  an  express  contract,  there  can  be 
no  recovery  upon  a  quantum  meruit.*    It  necessarily  follows  that 


i  Fulkerson  v.  Thornton,  68  Ma  468 
Kenney  v.  Railroad  Co.,  70  Mo.  252 
Melvin  v.  Railroad  Co.,  89  Mo.  106 
Rothschild  v.  Frensdorf,  21  App.  318 
Whitlock  v.  Appleby,  49  Mo.  295. 


2  Rev.  Stat.  1899,  sec  610. 

» Field  v.  Chicago,  R.  L  &  P.  R  Co., 
76  Mo.  614. 

*  Traders'  Bank  v.  Payne,  31  App. 
512. 


§§  77-80.]  PLEADING   AND   PROOF.  67 

a  plaintiff  cannot  recover  upon  a  theory  of  the  case  which  is  ad- 
verse to  that  upon  which  his  petition  proceeds.1  It  also  follows 
that,  if  he  cannot  prove  facts  not  pleaded,  he  is  not  entitled  to 
an  instruction  based  upon  such  facts.2 

§  77.  The  rule  applies  to  cases  in  equity. —  The  rule  that  no 
defense  will  be  considered  which  is  not  embraced  in  the  issue 
raised  by  the  pleadings  applies  to  cases  in  equity  as  well  as  to 
those  at  law.3  Plaintiff  filed  a  bill  in  equity  to  have  a  mistake 
in  a  mortgage  corrected.  The  answer  set  up  as  the  sole  defense 
that  plaintiff  knew  of  the  mistake.  Defendant  was  permitted 
to  prove  that  the  mortgage  was  given  for  a  pre-existing  debt, 
and  that  therefore  plaintiff  was  not  a  purchaser  for  value.  It 
was  held  that  a  judgment  rendered  on  this  ground  and  based 
upon  this  evidence  would  not  be  permitted  to  stand.4 

§  78.  Pleading  and  proof — Illustrations. —  If  the  petition 
counts  on  a  breach  of  warranty  of  title,  plaintiff  cannot  recover 
as  for  money  had  and  received,  nor  on  the  ground  of  subroga- 
tion to  the  rights  of  the  true  owner  to  whom  he  has  paid  the 
purchase  price.5  "Where  the  petition  alleges  that  plaintiff  pur- 
chased a  note  secured  by  a  deed  of  trust,  and  that  the  deed  of 
trust  was  afterwards  improperly  released  by  the  payee,  and 
prays  to  have  the  release  set  aside,  he  cannot  recover  upon  the 
ground  that  he  paid  the  note  and  was  subrogated  to  the  rights 
of  the  payee  therein.6 

§  79.  In  an  action  for  an  assault  the  petition  charged  that  de- 
fendant beat  end  struck  plaintiff.  The  evidence  showed  that 
defendant  was  present  aiding  and  encouraging  others  in  beating 
and  in  striking  plaintiff,  and  it  was  held  that  as  all  are  princi- 
pals in  such  a  case,  the  evidence  was  sufficient  to  sustain  the  alle- 
gations of  the  petition.7 

§  80.  Where  there  has  been  a  settlement  between  debtor  and 
creditor,  and  notes  are  given  by  the  debtor  to  the  creditor,  which 
notes,  however,  are  not  received  in  payment  of  the  balance  found 
by  the  settlement  to  be  due,  the  creditor  may  surrender  them 
and  maintain  his  action  for  their  amount  as  upon  an  account 

i  Steinberg  v.  Phoenix  Ins.   Co.,  49       *Cox  v.  Esteb,  68  Mo.  110. 
App.  255.  8  Thompson  v.  Irwin,  76  App.  418. 

2  Halpin  Mfg.  Co.  v.  School  Disk,  54       6  Wolff  v.  Walter,  56  Mo.  292. 

App.  371 ;  Chitty  v.  St.  Louis,  L  Mt.  &  7  Page  v.  Freeman,  19  Mo.  421;  Goetz 
S.  R.  Co.,  148  Mo.  64  v.  Ambs,  27  Mo.  28. 

3  Central  National  Bank  v.  Doran, 
109  Mo.  40. 


6S  WHAT    SHOULD   BE    STATED   IN    TLEADING.  [§  81. 

stated;  but  he  cannot  surrender  the  notes  and  maintain  a  suit 
upon  the  theory  that  the  account  is  still  an  open  one,  although  he 
.sues  for  the  same  amount  as  was  found  due  upon  the  settlement.1 
§  81.  Pleading  and  proof — Contracts. —  In  Knettle  v.  Scott2 
plaintiff  sold  defendants  a  threshing  machine,  part  of  the  price 
of  which  was  paid  at  the  time.  Plaintiff  sued  for  the  balance, 
and  the  defense  was  that  plaintiff  had  agreed  to  accept,  as  pay- 
ment of  the  balance,  threshing  to  be  performed  by  defendants  to 
the  amount  of  such  balance,  and  that  defendants  were  able,  will- 
ing and  ready  to  do  said  threshing.  The  court  held  that  if  such 
was  the  contract  plaintiff  could  not  recover,  inasmuch  as,  where 
there  was  an  express  contract  to  accept  payment  in  work,  plaint- 
iff could  not  ignore  that  contract  and  seek  to  recover  money, 
provided  defendants  were  ready  and  willing  to  perform  the 
work.  But  if  the  time  within  which  the  work  was  to  be  done 
had  elapsed,  and  defendants  had  refused  to  do  the  work,  then 
plaintiff  could  recover  a  money  judgment,  not  upon  the  ground 
that  he  could  ignore  the  contract,  but  as  damages  for  the  breach 
of  the  contract  on  defendants'  part.  If,  on  the  other  hand,  the 
contract  was,  as  contended  by  plaintiff,  that  plaintiff  agreed  to 
furnish  defendants  a  sufficient  amount  of  threshing  to  pay  the 
balance,  and  failed  to  do  so,  such  fact  would  constitute  no  de- 
fense to  the  action,  since  defendants  would  be  remitted  to  their 
action  for  damages  for  the  breach  of  plaintiff's  contract.  And 
the  case  of  Beach  v.  Curie3  was  cited  in  support  of  that  proposi- 
tion. The  case  was  distinguished  from  Edwards  v.  Mcliee* 
There  defendant  had  bought  certain  horsss  of  plaintiff  for  $400, 
and  claimed  that  there  was  an  agreement  that  he  was  to  have 
the  privilege  of  paying  the  sum,  or  a  part  of  it,  in  hauling.  The 
court  held  that  this  was  not  a  sale  of  the  horses  to  be  paid  for 
in  work,  but  it  was  a  contract  in  the  alternative,  and  that  the 
hauling  was  a  means  by  which  the  payment  of  money  might  be 
defeated,  and  constituted  nothing  but  a  defeasance.  After  the  time 
limited  for  payment  had  elapsed  plaintiff's  action  would  lie.  The 
result  of  these  cases  is  simply  to  enforce  the  rule  above  stated: 
that  a  party  must  declare  on  the  contract  as  made,  and  that  he 
cannot  ignore  the  contract  and  recover  on  a  different  state  of 
facts.5     Even  if  he  recovers  a  money  judgment,  the  judgment  is 

iMcCormickv.  Interstate  Cons.  Rap.  41  Mo.  123. 

Trans.  R.  Co.,  154  Mo.  191.  &If  the  contract  has  been  modified 

2  18  App.  412.  plaintiff  must  declare  on  the  modified 

3 15  Mo.  105.  contract.     See  §  374,  post. 


§§  82-84.]  PLEADING   AND   PROOF.  G9 

not  awarded  him  as  the  price  of  the  goods,  but  as  damages  for  a 
breach  of  the  contract  by  defendant. 

§  82.  Same —  Contract  made  by  agent. —  But  where  the  con- 
tract is  made  by  an  agent  of  defendant,  it  is  proper  that  plaint- 
iff should  allege  that  it  was  made  by  the  defendant  himself.1 
And  the  rule  is  carried  so  far  that,  where  one  partner  makes  a 
contract  for  the  firm,  the  petition  may  allege  that  defendants 
made  the  contract,  and  it  is  not  even  necessary  to  allege  that 
the  defendants  constituted  a  partnership.  It  is  immaterial,  too, 
that  the  partner  who  actually  made  the  contract  is  not  joined 
as  a  defendant.2 

§  83.  Performance. —  If,  in  an  action  upon  a  contract,  plaint- 
iff alleges  that  the  several  conditions  of  the  contract  have  been 
performed  upon  his  part,  to  which  defendant  pleads  the  non- 
performance of  one  of  the  conditions,  plaintiff,  if  he  enters  a 
simple  denial,  will  not  be  allowed  to  contradict  such  denial  and 
show  an  excuse  for  a  non-performance.3  But  where  the  action 
is  based  upon  a  contract  for  work  performed  by  the  plaintiff,  he 
may,  under  a  general  allegation  of  performance,  show  that  the 
completion  of  the  work  was  delayed  by  the  act  of  the  other 
party.  And  this  is  especially  the  rule  when  time  is  not  of  the 
essence  of  the  contract.4 

§  84.  In  cases  based  on  negligence. —  There  are  many  decis- 
ions of  the  Missouri  courts  tending  to  establish  the  rule  that 
under  a  general  charge  of  negligence,  where  defendant  has  not 
taken  the  proper  steps  to  compel  the  plaintiff  to  make  his  posi- 
tion more  definite  in  that  regard,  plaintiff  may  show  any  acts  of 
defendant  tending  to  establish  negligence.  And  this  rule  is  not 
confined  to  cases  originally  instituted  before  a  justice  of  the 
peace,  where  the  rules  of  pleading,  if  any  can  be  said  to  exist, 
are  much  more  lenient  than  in  courts  of  record,  but  is  also  rec- 
ognized in  cases  originally  brought  in  the  circuit  court.  Thus, 
it  is  held  in  Boone  v.  Wabash,  /St.  L.  &  P.  E.  Co.,5  that  where 
the  statement  is  that  defendant  by  its  agents  and  servants  care- 
lessly and  negligently  with  its  engine  and  cars  ran  over  and 
killed  the  cow,  etc.,  plaintiff  may  prove  any  negligence  of  de- 
fendant which  contributed  to  produce  the  injury.     But  where 

1  Gates  v.  Watson,  54  Mo.  585.  4  Pierce  City  Water  Co.  v.  Pierce 

2  Gates  v.  Watson,  54  Mo.  585;  Les-    City,  61  App.  47L 
sing  v.  Sulzbaoher,  35  Mo.  445.  820  App.  233. 

3  Gartside  v.  Conn.  Mut.  L.  Ins.  Co., 
8  App.  593. 


TO  WHAT    SHOULD   BE    STATED   IN   PLEADING.        [§§  85,  86. 

any  specific  act  of  negligence  is  alleged,  the  court  will  confine 
the  plaintiff  to  the  proof  of  such  act,  and  will  not  allow  him  to 
introduce  evidence  of  other  acts,  however  negligent  such  acts 
may  be.  Therefore,  if  the  petition  charges  that  death  resulted 
from  a  negligent  defect  in  the  plan  of  the  construction  of  an 
elevator  on  which  deceased  was  riding  when  injured,  plaintiff 
cannot  show  that  the  death  resulted  from  negligence  in  operat- 
ing the  elevator.1 

§85.  Cases  of  negligence  —  Illustrations. —  As  is  stated  in 
the  preceding  section,  if  the  petition  charges  specific  acts  of  neg- 
ligence, the  evidence  will  be  confined  to  the  negligence  so 
charged,  though  the  petition  also  contains  a  general  charge  of 
negligence.2  And  this  is  true  even  in  a  case  where  it  is  only 
necessary  to  aver  negligence  in  general  terms.3  Where  the  neg- 
ligence averred  is  a  collision,  and  the  proof  is  that  the  injury 
was  received  while  attempting  to  escape  from  the  car  to  avoid 
an  apprehended  collision,  there  can  be  no  recovery.4  So  if  plaint- 
iff predicates  his  right  to  recovery  upon  the  violation  of  an  ordi- 
nance regulating  the  speed  of  the  car,  if  he  fails  to  prove  such 
averment  he  cannot  rely  on  the  proof  of  common-law  negligence 
in  running  the  car  at  too  great  a  rate  of  speed.5  Where,  however, 
the  injury  for  which  the  action  was  brought  arose  from  the  fall- 
ing of  an  arc  lamp  which  plaintiff  was  repairing,  and  the  petition 
alleged  that  the  spool  of  the  lamp  was  worn  out  and  loose,  and 
added  that  that  was  one  among  other  defects  in  the  fastening 
of  the  lamp,  plaintiff  would  be  entitled  to  show  under  the  latter 
averment  any  negligent  insecurity  in  fastening  the  lamp.6  For 
if  the  petition  alleges  more  than  the  plaintiff  has  been  able  to 
prove,  he  may  still  recover  if  the  unproven  allegations  are  not 
essential  to  his  recovery.7 

§  86.  Where  the  allegation  of  the  petition  is  that  plaintiff  was 
injured  by  the  unlawful  and  wrongful  shooting  of  him  by  de- 
fendant, the  averment  is  sustained  by  proof  of  a  negligent  and 
careless  shooting.8    In  an  action  for  personal  injuries  received 

i  O'Brien  v.  Western  Steel  Co.,  100  4  Chitty  v.  St.  Louis,  L  M.  &  S.  R. 

Mo.  182.  Co.,  148  Mo.  64. 

2Dlauhi  v.  St.  Louis,  L  M.  &  S.  R  s  Hogan  v.  Citizens' R  Co.,  150  Mo.  36. 

Co.,   139  Mo.   291;  McCarty  v.  Rood  6  Gallagher  v.    Edison    I1L   Co.,   72 

Hotel  Co.,  144  Mo.  397;  Chitty  v.  St.  App.  576. 

Louis,  L  M.  &  S.  R  Co.,  148  Mo.  64  7  Gannon  v.  Laclede  Gas  Light  Co., 

3  Lachner  v.  Adams  Express  Co.,  72  145  Mo.  502. 

App.  13.  8  Conway  v.  Reed,  66  Mo.  346. 


§§  87,  88.]  PLEADING   AND    PKOOF.  71 

while  attempting  to  make  a  crossing  where  defendant's  cars  were 
standing,  the  averment  was  that  while  plaintiff  was  attempting 
to  pass  through  an  opening  between  the  cars  the  defendant's 
employees  negligently  drove  and  forced  against  the  stationary 
cars  certain  loose  cars,  whereby  the  stationary  cars  were  driven 
against  plaintiff  and  he  was  injured.  The  evidence  failed  to  sus- 
tain this  averment,  but  did  tend  to  show  that  the  stationary  cars 
were  left  standing  upon  the  track  without  being  so  secured  as  to 
prevent  their  being  accidentally  set  in  motion.  The  court  held 
that,  though  there  was  a  general  allegation  of  negligence,  yet  as 
the  specific  form  of  negligence  was  set  forth,  and  the  evidence 
failed  to  prove  such  specific  act  of  negligence,  plaintiff  was  not 
entitled  to  recover.1  And  this  rule  is  enforced,  even  in  regard 
to  statements  filed  before  a  justice.  Thus,  in  Milium  v.  Han- 
nibal <&  St.  Jos.  R.  Co  J  the  averment  was  that  defendant  did  neg- 
ligently  and  carelessly  run  over  and  kill  with  its  engine  and  cars 
plaintiff's  cattle.  It  was  held  that  under  this  allegation  plaintiff 
might  have  introduced  evidence  of  any  fact  tending  to  show  neg- 
ligence, such  as  that  the  bell  was  not  rung,  or  the  whistle  sounded 
after  the  cattle  were  discovered  on  the  track,  that  no  effort  was 
made  to  avoid  a  collision,  or  that  the  train  was  running  at  a  care- 
less rate  of  speed.  But  that  evidence  that  defendant  permitted 
grass  and  water  to  be  near  its  track,  and  that  cattle  were  thus 
attracted  to  the  point  of  danger,  was  totally  inadmissible. 

§  87.  The  rule  in  cases  of  negligence  applies  to  the  answer. 
Where  an  action  is  brought  against  an  employer  for  personal 
injuries  alleged  to  be  due  to  negligence  on  the  part  of  the  em- 
ployer, defendant  may  show  that  the  injuries  were  caused  by  the 
negligence  of  a  fellow-servant,  though  such  defense  was  not  spe- 
cially pleaded.3  But  an  averment  in  the  answer  that  the  injury 
was  caused  by  the  plaintiff's  own  negligence  will  not  let  in  the 
defense  that  the  injury  was  caused  by  the  negligence  of  a  fellow- 
servant.4 

§  88.  Recovering  damages. —  Where  in  an  action  for  personal 
injuries  the  petition  does  not  contain  any  specific  allegation  of 
permanent  injury,  it  is  nevertheless  proper  to  show  that  the  injury 
is  a  permanent  one.6 

1  Gurley  v.  Mo.  Pac.  R  Co.,  93  Mo.  *  Higgins  v.  Missouri  Pac.  R.  Co.,  43 
443.  App.  547.     Consult  also  §  100,  post. 

2  21  App.  426.  &  Cook  v.  Mo.  Pac.  R  Co.,  19  App. 

3  Sheehan  v.  Prosser,  55  App.  569.  329. 


I'l  WHAT   SHOULD   BE   STATED    IN   PLEADING.         [§§  89-91. 

§  SO.  Damages  in  attachment  snits. —  Plaintiff  suing  on  an 
attachment  bond  alleged  that  he  was  required  to  pay  out  large 
sums  of  money  in  defense  of  the  suit,  and  that  he  suffered  a  loss 
of  time  in  attending  it;  that  he  was  deprived  of  the  use  of  the 
money  which  had  been  attached,  was  injured  in  his  business,  etc. 
The  court  held  that  these  allegations  were  sufficient  to  warrant 
a  recovery  for  attorneys'  fees  and  for  extra  expenditures  in  the 
suit.1  And  an  allegation  in  such  an  action  that  plaintiff  was  com- 
pelled to  and  did  lay  out  and  expend  large  sums  of  money,  and 
was  put  to  great  expense  and  trouble  in  and  about  defending 
said  action,  to  wit,  $500,  is  sufficient  to  authorize  evidence  as  to 
lawyers'  fees,  hotel  bills,  etc.2 

§  90.  Pleading  and  proof  in  actions  for  slander. —  It  is  not 
necessary  to  prove  the  speaking  of  the  identical  words  charged 
in  the  petition ;  but  either  the  identical  words  must  be  proved  or 
substantially  the  same  words.3  The  exact  language  alleged  to 
have  been  used  by  defendant  must  be  proved  or  enough  of  the 
exact  language  to  constitute  the  charge.4  In  other  words,  the 
slander  proved  must  substantially  correspond  with  that  charged 
in  the  petition.5  It  is  not  enough  that  the  words  proved  are 
equivalent  in  meaning  to  the  words  charged,  for  if  they  are  not 
substantially  the  same  words,  but  contain  the  charge  in  different 
phraseology,  plaintiff  cannot  recover.6  Therefore  an  instruction 
that  if  the  words  proved  have  the  same  sense  as  the  words  alleged, 
there  is  no  variance,  is  erroneous.7  As  it  is  the  words  which  con- 
tain the  poison  to  the  character  and  impute  the  crime  which  must 
be  proved  as-  laid,  an  instruction  requiring  the  jury  to  believe 
from  the  evidence  that  the  defendant  spoke  the  words  charged 
in  the  petition,  or  enough  of  said  words  to  constitute  the  charge 
that  plaintiff  was  a  thief,  is  proper  enough.8 

§  91.  So  far  ha's  this  rule  been  carried  that  if  the  words  charged 
are  in  the  second  person,  as  that  "  you  stole  two  of  my  hogs," 
the  charge  is  not  sustained  by  proof  of  a  speaking  in  the  third  per- 
son, as  "  he  stole  two  of  my  hogs." 9    It  follows  that  if  the  charge 

i  State  v.  McHale,  16  App.  478.  76  Mo.  619;  Wood  v.  Hilbish,  23  App. 

2  Kelly  v.  Beauchamp,  59  Mo.  178.  389;   Noeninger  v.  Vogt,  88  Mo.  589; 

3Noeninger  v.   Vogt,   88    Mo.   589;  Baldwin  v.  Fries,  46  App.  288. 

Walter  v.  Hoeffner,  51  App.  46.  1  Christal  v.  Craig,  80  Mo.  367. 

*  Coe  v.  Griggs,  76  Mo.  619;  Wood  v.  8  Baldwin  v.  Fries,  46  App.  288. 

Hilbish.  2:S  App.  389.  9  Williams  v.  Harrison,  3  Mo.  411. 

5  Baldwin  v.  Fries,  46  App.  288.  And  this  ruling  is  followed  in  Bundy 

6  Berry  v.  Dry  den,  7  Mo.  324;  Birch  v.  Hart,  46  Mo.  460. 
v.  Benton,  26  Mo.  153;  Coe  v.  Griggs, 


§§  92-96.]  PLEADING    AND    PKOOF.  73 

is  that  defendant  spoke  the  words  directly  to  the  plaintiff,  proof 
of  a  speaking  by  defendant  to  a  third  person  of  and  concerning 
the  plaintiff  will  not  sustain  the  petition.1 

§  92.  Same  —  Not  necessary  to  prove  all  the  words. —  It  is 
not  necessary  to  prove  all  the  words  charged,  provided  the 
identical  words  containing  the  slanderous  imputation  are  proved.2 
And  if  the  proof  develops  an  omission  or  addition  of  words  in  no 
way  varying  or  affecting  the  sense  of  the  charge,  this  will  not 
constitute  a  fatal  variance.3  But  the  words  proved  must  contain 
the  poison  to  the  character  and  constitute  the  precise  charge  of 
slander  alleged.4 

§  93.  Same  —  Foreign  words. — Where  the  words  were  spoken 
in  a  foreign  language,  the  rule  that  they  must  be  substantially 
those  charged  in  the  petition  applies  to  the  words  in  the  vernacu- 
lar in  which  they  are  uttered ;  but  if  they  are  correctly  translated 
in  the  petition,  it  is  immaterial  that  a  witness  in  translating  them 
uses  equivalent  words  and  expressions.5 

§  94.  Pleading  and  proof  in  garnishment  proceedings. —  In 
a  garnishment  proceeding  it  is  immaterial,  at  least  after  verdict, 
that  the  parties  disregarded  the  issues  made  by  the  pleadings, 
and  tried  the  cause  on  issues  made  at  the  trial,  and  indicated  in 
the  instructions,  no  question  of  surprise  being  raised.6 

§  95.  Pleading  and  proof  in  mechanics'  lien  suits. — Where 
the  petition  alleges  that  plaintiffs  were  the  original  contractors, 
and  the  answer  contains  a  denial  of  that  fact,  but  does  not  set 
up  the  limitation  prescribed  by  the  statute,  defendants  cannot  be 
permitted  to  show  that  plaintiffs  had  only  four  months  in  which 
to  bring  their  action,  instead  of  six  months.7 

§  96.  The  relief  prayed  for. —  It  is  the  settled  law  of  this 
state  that  the  court  is  not  confined  to  the  specific  relief  prayed 
for,  but  will  grant  such  relief  as  the  facts  alleged  and  proved  will 
warrant,  if  the  prayer  is  sufficiently  broad  to  cover  such  relief. 
Yet  a  plaintiff  cannot  ask  the  court  to  grant  him  a  relief  of  one 
nature  and  then  ask,  if  he  is  mistaken  in  the  relief  to  which  he 
is  entitled,  that  one  of  an  entirely  different  nature  shall  be  granted 

i  Schmidt  v.  Bauer,  60  App.  212.  586;  Lewis  v.  McDaniel,  82  Mo.  577; 

2  Pennington  v.  Meeks,  46  Mo.  217.  Mix  v.  McCoy,  22  App.  488. 

3  Baldwin    v.   Fries,    46    App.   288;  5  Noeninger  v.  Vogt,  88  Mo.  589. 
Unterberger  v.  Scharff,  51  App.  102;  6St.  Louis  Coffin  Co.  v.  Rubelman,  15 
Noeninger  v.  Vogt,  88  Mo.  589.  App.  280. 

4  Hillebrand  v.  Dreinhoefer,  13  App.  7  Hearne  v.  Chillicothe  &  B.  R.  Co., 

53  Mo.  324. 


74.  "WHAT   SHOULD   BE   STATED    IN   PLEADING.         [§§  97,  98. 

him.  The  cases  on  this  point  will  be  found  in  the  chapter  on 
The  Prayer.1 

§  07.  Seed  not  prove  all  the  allegations. —  It  is  a  well  recog- 
nized rule  of  practice  that  every  averment  even  of  material  mat- 
ter need  not  be  proved.  If  there  be  sufficient  proof  of  the  re- 
maining substantive  allegations  constituting  a  cause  of  action 
the  ends  of  the  law  are  attained.2  If  the  petition  contains  aver- 
ments of  more  facts  than  plaintiff  is  required  to  state,  this  does 
not  preclude  a  recovery  if  all  the  facts  essential  to  make  out  his 
case  are  averred  and  proved.3  A  petition  will  not  be  dismissed 
because  the  evidence  does  not  support  certain  charges  contained 
in  it,  if  it  does  support  other  averments  which  are  sufficient  to 
authorize  a  recovery.4  Nor  will  the  plaintiff  be  driven  out  of 
court  simply  because  his  petition  alleges  more  than  he  has  proved, 
if  the  unproven  allegations  are  not  necessary  to  authorize  a  re- 
covery.5 The  case  cited  was  one  brought  by  a  wife  to  recover 
damages  for  the  death  of  her  husband,  which  occurred  on  one  of 
the  public  alleys  of  St.  Louis  while  in  the  discharge  of  his  duty 
as  a  member  of  the  fire  department  in  that  city.  His  death  was 
caused  by  stepping  on  an  electric  wire  belonging  to  defendant 
which  was  charged  with  electricity.  A  petition  in  such  a  case 
is  sufficient  if,  by  proper  averments,  it  charges  that  defendant 
had  negligently  suffered  such  electric  wire  so  charged  with  elec- 
tricity to  become  broken  and  fall  to  the  pavement  of  the  alley. 
The  petition  in  this  case  contained  such  averments;  but  it  also 
contained  additional  averments  of  carelessness  on  the  part  of  de- 
fendant to  the  effect  that  it  knew,  or  ought  by  the  exercise  of 
care  and  caution  to  have  known,  that  the  wire  in  question  was 
broken  and  down,  and  liable,  if  touched  by  a  human  being  while 
so  broken  and  down  and  charged  with  electricity,  to  destroy  his 
life.  It  was  held  that  the  fact  that  these  additional  averments 
were  not  proven  was  not  fatal  to  a  recovery  by  plaintiff,  if  her 
proof  was  such  as  to  make  &  prima  facie  case  of  negligence  under 
the  general  charge.6 

§  98.  Under  the  statute  making  a  railroad  company  responsible 
for  damages  to  property  injured  or  destroyed  by  fire  communi- 

i  Ch.  XIV.    See  also  §  70,  ante.  *  Knox  County  v.  Goggin,  105  Mo. 

2  Morrow    v.   Surber,    97    Mo.   155;     182. 
Kehoe  v.  Taylor,  31  App.  588.  » Gannon  v.  Laclede  Gas  Light  Co., 

SRadcliffe  v.  St  Louis,  LM.&S.E.     145  Mo.  502. 
Co.,  90  Mo.  127.  6  See  also  on  this  subject,  §  74,  ante, 

and  ch.  XIIL 


§§  99-101.]  PLEADING   AND   PKOOF.  75 

cated  by  its  locomotive,  it  is  not  necessary  to  charge  the  railroad 
company  with  negligence ;  and  even  if  the  petition  does  contain 
a  charge  of  negligence,  but  no  attempt  is  made  to  prove  the  aver- 
ment, a  verdict  in  favor  of  the  plaintiff  will  nevertheless  be  up- 
held if  sufficient  facts  are  averred  and  proved  to  bring  the  case 
within  the  statute.1 

§  99.  Where,  in  an  action  to  recover  money  paid  by  mistake, 
the  petition  also  contains  allegations  as  to  certain  misrepresenta- 
tions made  by  the  defendant  to  plaintiff's  clerk,  if  the  mistake 
affords  sufficient  ground  for  relief  it  is  not  necessary  to  prove  the 
misrepresentations.2  Mr.  Kerr  says  in  his  work  on  Fraud  and 
Mistake  that,  if  the  bill  alleges  a  case  of  fraud,  and  the  title  to 
relief  rests  upon  the  fraud  only,  the  bill  will  be  dismissed  if  the 
fraud  as  alleged  be  not  proved.  It  cannot  be  allowed  to  be  used 
for  any  secondary  purpose.  But  if  the  case  does  not  entirely  rest 
upon  the  proof  of  fraud,  but  rests  also  upon  other  matters  which 
are  sufficient  to  give  the  court  jurisdiction,  and  the  case  of  fraud 
is  not  proved,  but  the  other  matters  are  proved,  relief  will  be 
given  in  respect  of  so  much  of  the  bill  as  is  proved.3 

§  100.  The  above  rule  applies  to  an  answer.— The  fact  that 
an  answer  is  drawn  too  broadly  does  not  require  that  defendants 
offer  proof  or  submit  to  instructions  as  broad  as  the  allegations 
of  the  answer.4  And  though  the  answer  contain  averments 
that  are  superfluous  and  that  in  themselves  constitute  no  defense, 
yet  if  the  plea  as  a  whole  presents  a  good  defense  it  cannot  be 
stricken  out.5 

§  101.  Unnecessary  allegations  may  be  so  pleaded  as  to  re- 
quire proof  of  them. —  Yet  pleadings  maybe  so  shaped  as  to 
make  that  material  and  necessary  to  be  traversed  which  other- 
wise would  not  be.6  In  his  work  on  Kemedies  and  Remedial 
Rights,  Mr.  Pomeroy  says:  "  A  plaintiff  may  insert  in  his  plead- 
ing allegations  which  are  unnecessary  in  that  position,  and  which 
are  not  in  conformity  with  the  perfect  logic  of  the  system,  but 
which,  when  once  introduced,  become  material,  so  that  an  issue 
is  formed  upon  them  by  a  general  denial." 7  Such  facts  must 
be  proved  by  the  plaintiff  as  alleged.    That  a  party  may  be  held 

i  Fields  v.  Wabash  R.  Co.,  80  App.  8  Third  National  Bank  v.  Owen,  101 

60o.  Mo.  558.    Consult  also  §  87,  ante. 

a  Morrow  v.  Surber,  97  Mo.  155.  6  Kansas  City  Hotel  Co.  v.  Sauer,  65 

3  Cited  in  Kehoe  v.  Taylor,  31  App.  Mo.  279. 

588,  597.  7  Sec.  667. 

*  Frederick  v.  Allgaier,  88  Mo.  598. 


76  WHAT    SHOULD    BE    STATED    IN    PLEADING.       [§§  102,  103. 

to  prove  an  unnecessary  averment,  if  it  is  not  immaterial,  where 
he  has  averred  more  than  is  essential  to  a  recovery,  is  the  rule 
in  this  state.1  Thus  in  an  action  for  breach  of  warranty  of 
the  soundness  of  an  animal,  the  petition  not  only  contained  an 
averment  that  the  animal  was  unsound,  but  a  further  averment 
that  the  disease  constituting  the  unsoundness  was  glanders;  and 
it  was  held  that,  although  this  last  averment  was  unnecessary, 
yet  as  the  pleader  had  thought  proper  to  make  the  averment  he 
was  bound  to  prove  it,  since  unnecessary  averments,  unless  they 
are  immaterial,  must  be  proved.2  So,  too,  where  the  plaintiff 
unnecessarily  restricts  the  issues  by  his  allegations,  he  will  be 
bound  to  the  issue  thus  limited.3 

§  102.  Cases  in  point. —  "Where  one  has  contracted  to  pur- 
chase stock  from  a  corporation,  and  the  payment  of  the  money 
and  the  delivery  of  the  stock  were  to  be  simultaneous  acts,  the 
company  may  commence  an  action  for  breach  of  the  contract 
without  averring  an  oif er  or  readiness  on  its  part  to  perform  the 
contract  by  having  the  shares  of  stock  ready  for  transfer  and 
delivery.  But  if,  instead  of  bringing  such  an  action,  it  brings 
an  action  for  the  contract  price  of  the  shares,  and  avers  its  readi- 
ness to  comply  with  the  contract,  this  averment  of  readiness  to 
comply  becomes  essential  and  must  be  proved  in  order  to  a  re- 
covery.4 Where  a  special  tax-bill  issued  by  a  city  of  the  third 
class  is  sued  on  by  an  assignee,  he  need  only  allege  the  making 
of  the  bill,  its  contents  and  date,  its  assignment,  the  filing  of  it, 
and  that  defendant  owns  the  lot  against  which  he  seeks  to  estab- 
lish the  lien.  If  additional  allegations  are  made,  stating  facts 
which  show  an  improper  authorization  of  the  work,  such  allega- 
tions are  fatal  to  the  petition,  and  a  demurrer  will  lie  to  it.5 

§  103.  Proving  negative  allegations.^  If  the  subject-matter 
of  a  negative  averment  lies  peculiarly  within  the  knowledge  of 
the  other  party,  the  averment  is  taken  as  true,  unless  disproved 
by  that  party.6  It  has  been  held  by  the  supreme  court  that,  in 
an  action  against  a  railroad  company  for  injury  to  an  animal, 
the  petition  need  not  negative  the  fact  that  the  place  at  which 
the  animal  entered  upon  the  track  was  within  the  limits  of  an 
incorporated  town  or  city,  this  being  an  exculpatory  fact  which 
it  devolves  upon  the  defendant  to  prove.7    But  this  is  not  in  ac- 

i  See  ch.  XIIL  8  Carthage  v.  Badgley,  73  App.  123. 

2  Lindsay  v.  Davis,  30  Mo.  406.  «  State  v.  Hathaway,  115  Mo.  36. 

3  Jackson  v.  Hardin,  83  Mo.  175.  7  Meyers  v.  Union  Trust  Co.,  82  Mo. 

4  St.  Louis  Raw  Hide  Co.  v.  Hill,  72  237. 
App.  142. 


§§  104,  105.]  PLEADING  AND  PK00F.  77 

cord  with  two  earlier  decisions  of  the  supreme  court,1  though 
neither  of  those  cases  is  mentioned  in  the  Meyers  case.2  The  St. 
Louis  court  of  appeals  has  decided,  following  the  two  decisions 
of  the  supreme  court  last  cited,  that  a  petition  which  does  not 
directly  aver  that  the  stock  was  not  killed  within  the  limits  of 
an  incorporated  town  is  bad,  even  after  verdict.3 

§  104.  Necessity  of  pleading  waiver. —  If  either  party  relies 
upon  a  waiver  he  must  plead  it  or  he  will  not  be  permitted  to 
give  evidence  of  it.  The  rule  applies  to  the  breach  of  a  con- 
tract.4 And  if  there  is  a  plea  of  compliance  with  a  condition 
precedent,  evidence  will  not  be  admitted  to  show  that  the  con- 
dition was  waived.5  If  the  action  is  against  an  indorser  of  a 
promissory  note,  and  there  is  an  allegation  of  demand  and  no- 
tice, plaintiff  will  not  be  permitted  to  show  an  excuse  for  not 
making  a  demand  and  giving  notice.6  In  a  later  case,  however, 
it  is  said  that  the  authorities  preponderate,  at  least  in  this  coun- 
try, in  favor  of  the  view  that  evidence  excusing  presentment,  or 
showing  a  waiver  of  demand  and  notice,  is  admissible  in  support 
of  the  averment  of  presentment,  demand  and  notice.7  But  the 
case  of  Pier  v.  Heinrichoffen,  above  cited,6  is  approved  and  fol- 
lowed in  First  Nat.  Bank  v.  Hatch; 8  is  reaffirmed  in  Nichols  v. 
Larldn; 9  and  is  cited  with  approval  in  Lanitz  v.  JTing.10 

§  105.  In  the  first  case  involving  this  question  which  came 
before  the  Kansas  City  court  of  appeals,  it  was  held  that  an  aver- 
ment in  the  answer  of  compliance  by  defendant  wTith  the  condi- 
tions of  a  warranty  does  not  authorize  the  introduction  of  evi- 
dence going  to  show  a  waiver  by  plaintiff  of  such  compliance.11 
And  that  court  holds  that  if  the  petition  alleges  performance  of 
the  conditions  and  obligations  on  the  part  of  plaintiff,  there  can 
be  no  recovery  by  showing  a  waiver  of  such  performance.12  The 
same  rule  is  recognized  by  that  court  as  late  as  1895  in  the  case 

i  Rowland  v.  St.  Louis,  LI&S.R.  8  78  Mo.  13. 

Co.,  73  Mo.  619;  Schulte  v.  St.  Louis,  9  79  Mo.  264 

I.  M.  &  S.  R,  Co.,  76  Mo.  324.  1093  Mo.  513.    See  in  this  connection 

2  Meyers  v.  Union  Trust  Co.,  82  Mo.  Pratt  v.  Hanly,  1  Mo.  35;  Dorsey  v. 
237.  Watson,  14  Mo.  59;  Clayton  v.  Phipps, 

3  Holland  v.  West  End  Narrow  14  Mo.  399,  and  Estel  v.  St.  Louis  &  S. 
Gauge  R.  Co.,  16  App.  172.  E.  R.  Co.,  56  Mo.  282. 

4McCullough  v.  Phoenix  Ins.  Co.,  n  Safety  Fund  Nat.  Bank  v.  West- 

113  Mo.  606.  lake,  21  App.  565. 

5  Nichols  v.  Larkin,  79  Mo.  264.  ^Mohney  v.  Reed,  40  App.  99;  Fer- 

6  Pier  v.  Heinrichoffen,  52  Mo.  333.  neau  v.  Whitford,  39  App.  311;  Roy  v. 
*  Faulkner  v.  Faulkner,  73  Mo.  327.  Boteler,  40  App.  213. 


73  WHAT    SHOULD    BE   STATED   IN   PLEADING.       [§§  106,  107. 

of  Brownlow  v.  WcUcerd.1  On  the  contrary,  the  St.  Louis  court  of 
appeals  holds  that  under  an  allegation  of  performance  a  waiver 
may  be  shown;2  and  that  where  the  contract  which  is  the  foun- 
dation of  the  action  requires  performance  in  a  particular  way,  it 
may  be  shown,  without  specially  pleading  it,  that  defendant  ac- 
cepted performance  in  a  different  way.3  "Where  the  performance 
is  prevented  or  delayed  by  the  act  of  the  other  party,  it  is  held  by 
that  court  that  proof  of  waiver  is  not  an  excuse  for  non-per- 
formance, but  is  proof  of  performance  within  the  meaning  of 
the  condition.4 

§  106.  Waiver  in  actions  on  insurance  policies. —  "Whatever 
may  be  the  rule  with  reference  to  actions  on  contracts  generally, 
it  may  be  considered  the  settled  law  in  this  state  that,  in  actions 
upon  policies  of  insurance,  a  waiver  may  be  shown  under  an 
averment  or  plea  of  performance.  And  the  St.  Louis  court  of 
appeals  seems  now  to  hold  that  the  rule  announced  by  it  in  pre- 
vious cases  is  to  be  confined  to  insurance  cases.5  The  supreme 
court  announces  the  rule  as  follows:  That  proof  of  waiver  is  not 
admissible  under  an  allegation  of  performance  is  unquestionably 
the  rule  in  this  state  in  regard  to  all  kinds  of  actions  except 
those  on  policies  of  insurance;  but  that  in  the  latter  class  of 
cases  it  has  been  uniformly  held  by  that  court  that,  under  the 
allegations  in  the  petition  that  all  the  conditions  of  the  policy 
have  been  complied  with,  proof  of  waiver  is  permissible  within 
the  meaning  of  the  conditions  in  the  policy.  (Citing  cases  from 
that  of  St.  Louis  Ins.  Co.  v.  Kyle,  11  Mo.  278,  down  to  the  pres- 
ent time.) 6  Thus,  under  an  allegation  that  proof  of  loss  was  fur- 
nished, it  may  be  shown  that  the  proof  was  waived.7  And  this 
ruling  is  now  followed  by  the  Kansas  City  court  of  appeals.8 

§  107.  Method  of  pleading  waiver.— The  rule  as  to  waiver 
bein^  that  there  can  be  no  waiver  in  the  absence  of  knowledge 
of  the  true  situation,  in  pleading  a  waiver  there  must  be  an  alle- 
gation that,  knowing  the  contract  had  not  been  performed,  the 

1 61  App.  124.  Ins.  Co.,  61   App.  352;   McCollum  v. 

2  St.  Louis  Steam  Heat.  &  V.  Co.  v.  North  British  Mercantile  Ins.  Co.,  65 
Bissell,  41  App.  426;  Smith  v.  Haley,     App.  304. 

41  App.  611.  6McCulloch  v.  Phoenix  Ins.  Co.,  113 

3  Smith  v.  Haley,  41  App.  611.  Mo.  606;  Nickell  v.  Phoenix  Ins.  Co., 

4  Pierce  City  Water  Co.  v.  Pierce  144  Mo.  420;  James  v.  Mutual  Reserve 
City,  61  App.  471.     See,  however,  the  Fund  L.  Ass'n,  148  Mo.  1. 

next  succeeding  section.  T  Nickell  v.  Phoenix  Ins.  Co.,  144  Mo. 

5  Stephens  v.   German  Ins.    Co.,  61    420. 

App.  194;  McCollum  v.  Niagara  Fire        8  Murphy  v.  Insurance  Co., 70  App.  84 


§  107.]  PLEADIXG  A.ND  PEOOF.  79 

defendant  nevertheless  accepted,  as  and  for  a  full  performance,  the 
things  done  by  the  plaintiff.1  The  Kansas  city  court  of  appeals 
has  held  that  if,  in  an  action  on  a  contract,  the  petition  alleges 
performance  of  the  conditions  to  be  performed  by  plaintiff,  and 
the  answer  denies  performance,  plaintiff  cannot  in  his  reply  allege 
a  waiver,  since  defendant's  denial  makes  the  issue  complete,  and 
the  allegation  of  waiver  in  the  reply  is  inconsistent  with  the 
allegation  of  performance  in  the  petition ;  nor  can  the  allegation 
in  the  reply  cure  the  defect  of  the  petition.1  And  this  is  un- 
doubtedly the  rule  announced  by  the  supreme  court  in  Taylor  v. 
Newman?  But  in  the  later  case  of  Ehrlich  v.  uEtna  Ins.  Co.,3 
the  supreme  court  distinctly  states  that  the  general  allegation  of 
performance  in  the  petition  will  not  lay  a  foundation  for  the  ad- 
mission of  evidence  constituting  an  excuse  for  non-performance, 
and  that  to  make  an  issue  of  waiver  of  the  breach  alleged  in  the 
answer,  such  waiver  must  be  set  up  in  the  reply.  This  last  decis- 
ion is  followed  by  the  St.  Louis  court  of  appeals  in  Pierce  City 
Water  Co.  v.  Pierce  City} 

1  Mohney  v.  Reed,  40  App.  99.  8 103  Mo.  231. 

2  77  Mo.  257.  *  61  App.  471. 


CHAPTER  VI. 


SAME  SUBJECT  — ONLY  FACTS  ARE  TO  BE  PLEADED. 


§  108.  The  rule. 

10'J.  Cases  enforcing  the  rule. 
110.  Illustrative  cases. 

115.  Only  the  ultimate  facts  need 

be  pleaded. 

116.  What  is  meant  by  the  term 

"ultimate  facts." 

117.  Facts  which  are  inferable  from 

the  facts  alleged. 


118.  Facts     inferable    from    facts 
stated  —  Illustrations. 

127.  Contrary  inferences    not  per- 

missible. 

128.  Facts  which  are  merely  eviden- 

tial should  not  be  pleaded. 

129.  Extent  of  this  rule. 

130.  The  rule  applies  in  an  action 

for  conversion. 


§  108.  The  rule. —  The  whole  theory  of  the  practice  act  is 
that  facts,  and  not  conclusions  of  law,  should  be  pleaded.  The 
statute  says  no  allegations  shall  be  made  in  a  pleading  which 
the  law  does  not  require  to  be  proved,  and  only  the  substantive 
facts  necessary  to  constitute  the  cause  of  action  or  defense  are  to 
be  stated.1  This  provision  necessarily  excludes  from  pleadings 
all  mere  legal  fictions,  for  such  fictions  require  no  proof  and  can- 
not be  traversed.2 

§  109.  Cases  enforcing  the  rule, —  The  facts  constituting  the 
cause  of  action  or  the  defense  are  the  facts  required  to  be  stated. 
The  relief  to  which  the  party  is  entitled  is  determined  by  the 
court  as  a  matter  of  law  from  the  facts  pleaded.  Neither  evi- 
dence nor  conclusions  of  law  should  be  stated.3  All  facts  from 
which  the  ultimate  and  conclusive  facts  may  be  inferred  are  evi- 
dential and  need  not  be  stated ;  but  those  facts  from  which  the 
legal  conclusion  is  to  be  drawn,  and  upon  which  the  right  of  ac- 
tion depends,  must  be  stated.4  It  would  be  not  only  unnecessary 
but  highly  improper  for  the  pleader  to  enter  into  an  argument 
in  his  favor  or  to  make  a  statement  of  his  proof.5 


i  Rev.  Stat,  1899,  sec.  610. 

2  Gould  on  Plead.  (4th  ed.),  p.  48. 

;;  .Murphy  v.  Price,  48  Mo.  247;  Wig- 
gins v.  Graham,  51  Mo.  17;  Kerr  v. 
Simmons,  82  Mo.  209;  Turley  v.  Ed- 


souri  Pac.  R.  Co.,  22  App  224;  Planet 
Prop.  &  Fin.  Co.  v.  St.  Louis,  O.  H.  & 
Carond  R.  Co.,  115  Mo.  613. 

*  Mitchell  v.  Clinton,  99  Mo.  153. 

5  Van  Hoozer  v.  Van    Hoozer,    18 


wards,  18  App.  676;   McNees  v.  Mid-    App.  19. 


§§  110-114.]    ONLY  FACTS  ARE  TO  BE  PLEADED.  81 

§  110.  Illustrative  cases. —  In  an  action  against  a  railroad 
company  to  recover  a  rebate  which  plaintiff  alleged  the  com- 
pany agreed  to  allow  him  on  freight  shipped  by  him  over  its 
road,  it  was  not  error  to  deny  defendant's  motion  to  require 
plaintiff  to  make  his  petition  more  definite  and  certain,  by  stat- 
ing where  and  by  what  officers  of  defendant  the  alleged  contract 
was  made,  whether  it  was  oral  or  in  writing,  and,  if  in  writing, 
that  plaintiff  be  required  to  file  it  in  court  for  defendant's  inspec- 
tion, where  it  appeared  that  the  contract  was  not  in  writing,  and 
the  petition  alleged  a  contract,  set  out  its  terms,  averred  a  breach 
thereof,  and  the  amount  of  damages  claimed  for  the  breach.1 

§  111.  If  in  an  action  concerning  real  estate  the  petition  al- 
leges that  plaintiff  is  the  owner,  it  is  not  necessary  that  he  should 
trace  out  his  title  and  show  how  he  became  the  owner.2 

§  11 2.  "Where  a  bill  is  filed  seeking  to  subject  certain  property 
of  the  defendant  to  the  payment  of  a  debt  due  to  plaintiff  on  the 
ground  of  fraud  in  a  certain  conveyance,  the  petition  was  indef- 
inite in  failing  to  state  the  date  at  which  the  indebtedness  was 
contracted,  and  the  petition  was  attacked  on  that  ground.  But 
the  court  of  appeals  held  that  in  such  a  proceeding  the  nearness 
or  remoteness  of  the  time  of  contracting  the  debt  relative  to 
the  date  of  the  fraudulent  conveyance,  while  important  as  an 
evidentiary  fact,  is  not  decisive,  and  the  statement  of  it  in  the 
petition  is  therefore  not  essential  to  the  statement  of  a  good 
cause  of  action.3 

§  113.  Where  plaintiff  sues  for  the  conversion  of  his  property 
by  the  defendant,  the  fact  of  the  conversion  must  be  directly  al- 
leged in  the  petition;  it  is  not  sufficient  to  allege  it  inferentially, 
or  to  aver  merely  a  demand  and  refusal,  though  these  are  facts 
which  constitute  evidence  of  a  conversion.4 

§  114.  Where  an  action  is  brought  on  a  recognizance,  an  an- 
swer which  alleges  the  surrender  of  the  principal  by  the  bail  and 
the  acceptance  of  such  surrender  by  the  sheriff  contains  all  the 
substantive  facts  constituting  the  defense,  and  it  is  not  necessary 
to  further  allege  that  the  acceptance  by  the  sheriff  was  in  writ- 
ing.5 

i  Christie  v.  Mo.  Pac.  R.  Co.,  94  Mo.        3  Loehr  v.  Murphy,  45  App.  519. 
453.  4  Perry  v.  Musser,  G8  Mo.  477. 

*  Planet  Prop.    &   Fin.    Co.    v.    St.        5  State  v.  Meyers,  61  Mo.  414. 
Louis,  O.  H.  &  Carond.  R.  Co.,  115  Mo. 
613. 

Mo.  Code  Pi 6 


Si'  WHAT    SHOULD    BE    STATED    IN    PLEADING.       [§§  115,  11G. 

§  115.  Only  the  ultimate  facts  need  be  pleaded. —  The  Code 
does  not  require  that  the  pleader  should  state  specifically  the 
details  which  go  to  make  up  the  constitutive  facts.1  The  cause 
of  action  is  the  wrong  which  has  been  suffered,  and  the  facts 
that  show  the  wrong  show  the  cause  of  action;  they  are  the 
facts  to  be  found,  and  upon  principle  they  are  the  facts  to  be 
stated  by  the  pleader.2  It  seems  they  may  be  pleaded  according 
to  their  legal  effect.3  Thus  a  general  allegation  of  warranty  is 
sufficient  without  stating  whether  it  was  express  or  implied;3  and 
the  allegation,  "  belonging  to  plaintiff,"  is  an  allegation  of  title 
which  carries  with  it  the  idea  of  possession.4  So,  too,  a  peti- 
tion which  alleges  title  to  certain  property  in  A.,  and  that  A. 
sold,  assigned  and  transferred  the  property  to  plaintiff,  suffi- 
ciently avers  title  and  ownership  in  plaintiff.5  It  must  be  remem- 
bered, however,  that  facts  which  are  raised  by  mere  legal  impli- 
cation are  not  constitutive  facts  such  as  are  necessary  to  be 
averred  in  order  to  state  a  cause  of  action  under  our  system  of 
pleading.6 

§116.  What  is  meant  by  the  term  "ultimate  facts." — 
"Where  an  action  is  based  on  the  breach  of  a  duty,  the  facts  out 
of  which  the  duty  arises  must  be  pleaded.7  "Where  a  suit  is  based 
upon  the  claim  that  plaintiff  is  an  innocent  purchaser  for  value, 
the  petition  must  set  out  all  the  allegations  necessary  to  consti- 
tute one  an  innocent  purchaser.  And  where  the  petition  in  a 
suit  to  cancel  a  sheriff's  deed  as  constituting  a  cloud  on  the  title, 
after  stating  the  source  of  the  title  and  describing  the  land,  al- 
leges that  plaintiff,  on  the clay  of ,  in  good  faith  and 

for  full  value  purchased  the  land  of  the  vendor,  who  on  the  same 
day  executed  and  delivered  a  deed  to  plaintiff,  who  paid  the 
vendor  the  purchase-money  and  immediately  placed  said  deed 
on  record  and  took  possession,  and  ever  since  has  been  and  now 
is  the  owner  in  fee  in  possession,  such  petition  fails  to  state  facts 

1  See  v.  Cox,  16  Mo.  166;  Armstrong  5Bank  of  Odessa  v.  Jennings,  18 
v.  Mo.  Pac.  R.  Co.,  17  App.  403;  Planet  App.  651.  See  also  Ellithrope  v.  Vogel- 
Cn.  v.  Railroad  Co.,  115  Mo.  613.  sang  Com.  Co.,  67  App.  251. 

2  Thomas  v.  Concordia  Cannery  Co.,  6Duff  v.  Fire  Association,  129  Mo. 
68  App.  350,  359.  460,  466;  but  consult  §  343,  post.     As 

3  Long  v.  Armsby  Co.,  43  App.  253.  to  facts  which  may  be  inferred  from 
As  to  this  point  see,  however,  post,  those  alleged,  see  post,  §  117  et  seq. 

§  143  et  seq.  7  Field  v.  Chicago,  R.  I.  &  Pac.  R. 

*  Warnick  v.    Baker,  42  App.   439.     Co.,  76  Mo.  614. 
See  also  Eans  v.  Exchange  Bank,  79 
Mo.  182. 


§§  117-119.]     ONLY  FACTS  ARE  TO  BE  PLEADED.  83 

sufficient  to  show  that  plaintiff  was  an  innocent  purchaser.1  To 
invoke  the  aid  of  a  court  of  equity  as  a  honajide  purchaser  with- 
out notice,  the  petition  must  show  that  plaintiff  made  his  pur- 
chase and  paid  the  purchase-money  before  he  had  notice  of  the 
prior  equity.  He  must  show  fully  and  explicitly  the  time  and 
terms  of  his  purchase  and  of  the  payment  of  the  purchase-money.2 
If  the  action  is  based  upon  the  fact  that  an  act  which  was  orig- 
inally without  authority  has  been  ratified,  the  pleader  must  count 
on  the  subsequent  promise.3 

§  117.  Facts  which  are  inferable  from  the  facts  alleged. — 
Though  a  petition  may  contain  no  direct  averment  of  some  par- 
ticular fact  essential  to  the  cause  of  action,  yet  it  may  so  embody 
such  fact  by  necessary  intendment,  and  by  inference  from  the 
allegations  which  are  made,  as  to  constitute  the  statement  of  a 
cause  of  action.4  Facts  which  are  necessarily  implied  from  the 
direct  averments  in  a  pleading  will  be  treated  as  having  been 
pleaded.5  Thus,  where  the  law  requires  that  a  contract  shall  be 
made  in  a  particular  manner,  an  averment  that  it  was  made  will 
be  held  to  imply  that  it  was  made  in  lawful  form.6  It  is  not 
necessary  to  state  that  a  guaranty  is  in  writing.7  If  it  is  alleged 
that  a  deed  was  executed  and  recorded,  it  is  equivalent  to  alleg- 
ing that  it  was  delivered.8 

§  118,  Facts  inferable  from  facts  stated  —  Illustrations. — 
"Where  an  action  is  brought  upon  an  account  which  plaintiff 
claims  has  been  assigned  to  him,  an  allegation  in  the  petition  of 
the  acquisition  of  title  by  assignment  a  few  days  prior  to  the 
institution  of  the  action  carries  with  it  a  legal  intendment  of 
ownership  on  the  date  of  suit ;  at  least,  in  the  absence  of  any  at- 
tack upon  the  petition  for  indefiniteness,  or  any  issue  made  in 
the  answer  as  to  title.9  A  petition  which  alleges  that  defend- 
ant delivered  to  plaintiff's  intestate  a  certain  certificate  of  de- 
posit which  was  payable  to  the  intestate,  impliedly  alleges  that 
the  intestate  was  the  holder  and  owner  thereof.10 

§  119.  "Where  a  statute  provides  that  an  action  for  death  may 
be  brought  by  the  parent  if  the  deceased  was  a  minor  and  un- 

i  Young  v.  Schofield,  132  Mo.  650.  7  Miles  v.  Jones,  28  Mo.  87. 

2  Wallace  v.  Wilson,  30  Mo.  335.  «  McReynolds  v.  Grubb,  150  Mo.  352. 

a  Noble  v.  Blount,  77  Mo.  235.  See  also  §  130,  post 
*  Ellsworth  Coal  Co.  v.  Quade,   28        9  Ellithrope  v.  Vogelsang  Com.  Co., 

App.  421.  67  App.  251. 

5  Weaver  v.  Harlan,  48  App.  319.  10  Eans  v.  Exchange  Bank,  79  Mo. 

6  Still  well  v.  Hamni,  97  Mo.  579.  1S2. 


Si  WHAT    SHOULD   BE    STATED    IN   PLEADING.       [§§  120,121. 

married,  an  allegation  that  the  deceased  was  the  infant  son  of 
the  plaintiffs  and  was  under  the  age  of  two  years,  or  under  the 
age  of  six  years,  is  a  sufficient  allegation  that  the  deceased  was 
unmarried.1  Where  the  action  is  for  personal  injuries  alleged 
to  have  been  caused  by  the  negligent  act  of  an  employee  of  de- 
fendant,  though  the  petition  does  not  contain  an  allegation  that 
the  act  was  committed  by  the  employee  while  he  was  in  dis- 
charge of  the  particular  duties  pertaining  to  that  employment, 
yet  the  petition  is  not  demurrable  on  that  ground,  if  the  omitted 
allegation  might  reasonably  be  implied  from  other  allegations 
in  the  petition.2  A  physician  brought  an  action  against  a  rail- 
road company  for  injuries  suffered  while  a  passenger,  but  the 
petition  contained  no  direct  averment  that  he  was  a  practicing 
physician.  It  did,  however,  contain  the  allegation  that  by  his 
injuries  plaintiff  had  been  permanently  disabled  from  practicing 
his  profession  as  a  physician  and  surgeon,  and  has  lost  and  will 
lose  his  earnings  therefrom.  Under  this  averment  the  court 
properly  admitted  evidence  that  plaintiff  was  a  physician,  and 
that  he  had  lost  the  earnings  of  his  practice  by  reason  of  his  in- 
juries.3 

§  120.  The  statement  that  a  defendant  railroad  company  failed 
and  neglected  to  erect  or  maintain  good  or  sufficient  fences  where 
the  stock  got  on  the  track,  accompanied  by  a  reference  to  sec- 
tion 1105,4  which  contains  the  requirements  as  to  fencing  the 
track,  avers  by  implication  that  it  was  the  duty  of  defendant  to 
erect  and  maintain  fences  at  the  place  in  question,  and  that  the 
stock  got  on  the  track  in  consequence  of  such  failure.5 

§  121.  When  a  complaint  against  a  municipality  relates  to  an 
act  which  can  be  lawfully  done  only  under  an  ordinance,  an 
averment  in  the  petition  that  the  act  was  done  by  the  corpora- 
tion implies  that  it  was  done  in  pursuance  of  an  ordinance.6 
Thus,  where  the  action  is  for  negligence  in  changing  the  grade 
of  a  street,  an  allegation  that  the  city  raised  the  grade  is  equiva- 
lent to  an  allegation  that  the  grade  was  raised  in  pursuance  of 
an  ordinance.7  So,  where  the  petition  alleges  that  a  certain 
ordinance  defining  the  limits  within  which  private  property 

iCzezewzka  v.  Benton-Bellefontaine        4Rev.  Stat.  1899. 
Ry.  Co.,  121  Mo.  201;   Baird  v.  Citi-        6  Jackson  v.  St.  Louis,  I.  M.  &  S.  R. 

zens'  Ry.  Co.,  146  Mo.  265.  Co.,  80  Mo.  147. 

2  Todd  v.  Havlin,  72  App.  565.  6  Stewart  v.  Clinton,  79  Mo.  603. 

»  Mason  v.  St.  Louis,  I.  M.  &  S.  R.        ?  Werth  v.  Springfield,  78  Mo.  107. 
Co.,  75  App.  1.    See  also  §  125,  post. 


§§  122-125.]    ONLY  FACTS  ARE  TO  BE  PLEADED.  85 

would  be  benefited  by  the  grading  of  a  street  was  "  duly  enacted," 
this  inferentially  alleges  the  passing  of  an  ordinance  for  the 
grading  of  the  street.1  In  an  action  against  a  city  to  recover 
damages  for  change  in  the  grade  of  a  street,  it  was  alleged  that 
defendant  was  prosecuting  the  work  of  changing  the  grade  "  to 
the  grade  established  by  ordinance  15,119."  From  this  allega- 
tion it  is  necessarily  implied  that  the  work  was  done  in  pursuance 
of  some  ordinance  duly  enacted.2  Where  a  petition  charges  that 
a  municipality  failed  and  neglected  to  keep  a  street  in  a  safe 
and  suitable  condition  for  public  use,  and  unlawfully  and  neg- 
ligently suffered  such  street  to  be  obstructed,  it  states  facts  from 
which  it  may  be  inferred  that  the  municipality  had  notice  of  its 
dangerous  condition.3 

§  122.  The  plea  of  the  statute  of  limitations  may  be  anticipated 
in  the  petition  by  an  averment  that,  before  the  statute  began  to 
run,  the  defendant  departed  from,  and  has  ever  since  resided  out 
of,  the  state  of  Missouri,  and  still  so  resides,  if  it  inferentially  ap- 
pears from  the  pleading  that  defendant  was  a  resident  of  the 
state  up  to  the  time  of  such  departure.4 

§  123.  Where  in  an  action  of  replevin  for  a  saw-mill  the  peti- 
tion expressly  states  that  the  property  was  wrongfully  seized, 
and  that  on  the  date  of  the  seizure  its  operation  was  closed,  it 
will  be,  presumed  that  the  mill  was  seized  in  the  only  manner 
in  which  tangible  personal  property  can  be  legally  seized  by  an 
officer;  that  is,  by  taking  it  into  his  possession;  and  a  wrongful 
taking  is  therefore  sufficiently  alleged  by  reasonable  intendment. 
So,  too,  a  wrongful  detention  is  reasonably  alleged,  since  a  state 
of  matters  once  shown  is  presumed  to  continue  until  the  con- 
trary appears,  and  it  is  the  officer's  duty  to  retain  the  property 
seized.5 

§  121.  In  a  mechanics'  lien  suit  an  allegation  that  defendant 
was  the  owner  of  the  premises  is  by  intendment  a  sufficient  alle- 
gation that  defendant  owned  the  buildings.6 

§  125.  In  an  action  for  personal  injuries  received  by  plaintiff 
while  descending  a  defective  stairway  leading  from  the  first  floor 
to  the  basement  floor  of  a  building  occupied  by  defendant,  an 
averment  in  the  petition  that  defendant  occupied  the  rooms  as  a 

i  St.  Louis  v,  Lang,  131  Mo.  412.  4  Sheehan  Trans.  Co.  v.  Sims,  30  App. 

2MacMurray-Judge  Iron  Co.  v.  St.  224. 
Louis,  138  Mo.  608.  6  Keen  v.  Munger,  52  App.  660. 

3  Hurst  v.  Ash  Grove,  96  Mo.  168.  6  Stone  v.  Taylor,  72  App.  482. 


86  WHAT    SHOULD    BE    STATED    IN    PLEADING.       [§§  126-128. 

place  of  business  includes  by  reasonable  intendment  the  aver- 
ment that  lie  had  control  of  the  rooms.1 

§  126.  In  an  action  on  an  attachment  bond  it  is  not  necessary 
to  aver  that  there  was  an  affidavit  for  the  attachment  made  and 
filed,  if  the  petition  contains  an  averment  that  a  plea  in  abate- 
ment was  tiled  in  such  attachment  suit,  and  that  upon  the  issues 
tendered  by  it  a  trial  and  judgment  were  had.2 

§  127.  Contrary  inferences  not  permissible. —  When  certain 
facts  are  pleaded  inferences  contrary  to  those  facts  are  not  to  be 
considered.3 

§  128.  Facts  which  are  merely  evidential  should  not  be 
pleaded. —  Section  615 4  provides  that  a  party  shall  not  be  re- 
quired to  state  evidence  in  his  pleading,  nor  to  disclose  therein 
the  means  by  which  he  intends  to  prove  his  case;  and  section 
610  *  requires  that  only  the  substantive  facts  necessary  to  consti- 
tute the  cause  of  action  or  defense  shall  be  stated.  It  is  there- 
fore neither  necessary  nor  proper  to  state  in  a  pleading  the  facts 
and  circumstances  by  which  the  ultimate  fact  relied  upon  is  to 
be  proved.5  In  an  action  against  a  railroad  company  for  per- 
sonal injuries  suffered  by  an  employee,  one  of  the  defenses  inter- 
posed was  that  plaintiff  received  his  injuries  in  consequence  of 
a  violation  by  him  of  the  rules  of  the  company.  The  averment 
of  the  answer  was  as  follows:  "  Defendant  says  that  plaintiff  re- 
ceived the  injury  complained  of  in  consequence  of  going  between 
the  cars  while  in  motion  for  the  purpose  of  uncoupling  them,  in 
violation  of  his  duty  and  of  the  rules  and  regulations  of  the  defend- 
ant in  that  behalf  made  and  provided.''  Defendant  offered  in 
evidence  one  of  its  rules  which  related  to  the  manner  of  coup- 
ling and  uncoupling  cars,  but  the  trial  court  excluded  it  upon  the 
ground  that  it  was  not  admissible  under  the  pleading.  The  su- 
preme court  held  that  this  ruling  was  erroneous  in  view  of  the 
provisions  of  the  two  sections  above  cited.6  It  is  not  necessary 
in  an  action  to  recover  for  goods  sold  to  a  firm  that  the  petition 

i  Clack  v.  Southern  El.  Supply  Co.,  Murphy  v.  Price,  48  Mo.  247,  250;  Alex- 

72  App.  506.  ander  v.  Campbell,  74  Mo.  142;  Planet 

2  State  ex  rel.  v.  Pace,  34  App.  458.  Co.  v.  St.  Louis,  O.  &  C.  R  Co.,  115 
See  also  §  130,  x>ost.  Mo.  613;  Van  Hoozer  v.  Van  Hoozer, 

3  Carondelet  Gas  Light  Co.  v.  Pratt,  18  App.  19;  McNees  v.  Mo.  Pac.  R.  Co., 
7  App.  573.  22  App.  224. 

4  Rev.  Stat.  1899.  «  Alcorn  v.  Chicago  &  Alton  R  Co., 

5  See  v.  Cox,  16  Mo.  166;  Han.  &  St.  108  Mo.  81. 
Jos.  R   Co.  v.   Kenney,  41   Mo.  271; 


§§  129,  130.]    ONLY  FACTS  ARE  TO  BE  PLEADED.  87 

should  allege  that  the  defendants  were  partners.  It  is  sufficient 
to  charge  that  the  goods  were  sold  to  defendants,  and  in  proof 
of  this  averment  plaintiff  may  show  that  the  defendants  were 
partners,  and  that  the  purchase  was  made  by  one  of  the  partners 
for  the  benefit  of  the  firm ;  and  it  is  immaterial  that  the  partner 
making  the  purchase  is  not  joined  as  a  defendant.1  And  the 
same  principle  applies  where  the  action  is  based  upon  a  promis- 
sory note  which  was  executed  by  a  party  for  the  firm  of  which 
he  was  a  member  and  to  which  the  defendants  belonged.2  So, 
where  the  averment  is  that  defendant  purchased,  it  may  be 
shown  that  the  purchase  was  made  by  an  authorized  agent.1  In 
an  action  on  an  account  stated,  an  allegation  that  the  account 
was  presented  to  defendant  by  plaintiff,  and  was,  after  some 
months,  returned  without  objection,  is  the  statement  of  facts 
which  are  merely  evidential.3  It  is  not  necessary  in  pleading  the 
right  to  an  exemption  to  set  out  the  facts  constituting  the  party 
the  head  of  a  family.4 

§  129.  Extent  of  this  rule.— The  rule  that  evidence  is  not  to 
be  pleaded  has  been  carried  so  far  that  if  a  statute  of  another 
state  or  the  ordinance  of  a  city  is  not  the  basis  of  the  cause  of 
action,  but  is  merely  evidentiary,  it  need  not  be  pleaded.5 

§  130.  The  rule  applies  in  an  action  for  conversion.—  Where 
plaintiff  sues  for  the  conversion  of  his  property  by  the  defendant, 
the  fact  of  the  conversion  must  be  directly  alleged  in  the  petition; 
it  is  not  sufficient  to  allege  it  inferentially  or  to  state  facts  which 
constitute  the  evidence  of  the  conversion.6 

i  Gates  v.  Watson.  54  Mo.  585.  4  Duncan  v.  Frank,  8  App.  286. 

2Lessing  v.  Sulzbacher,  35  Mo.  445.  ^Banchor  v.  Gregory,  9  App.  102; 

3  Brown  v.  Kiminel,  G7  Mo.  430,  432.  Senn  v.  Southern  Ry.  Co.,  135  Mo.  512. 

And  see,  in  this  connection,  McKeen  6  Perry  v.  Musser,  68  Mo.  477. 
v.  Boatmen's  Bank,  74  App.  281. 


CHAPTER  VII. 


SAME  SUBJECT  —  CONCLUSIONS  OF  LAW  SHOULD  NOT  BE  AL- 
LEGED. 


§  131.  Facts  are  to  be  pleaded  as  dis- 
tinguished from  conclusions. 

132.  The  rule  applies  to  the  plead- 

ings of  both  parties. 

133.  Pleading   compliance   with   a 

statute. 
134  Declaring  on  a  written  instru- 
ment. 

135.  Some  exceptions  to  the  rule. 

136.  A  violation  of  the  rule  may  be 

waived. 

137.  Pleading  conclusions  of  law  — 

Illustrations. 
143.  Pleading  the  legal  effect. 


§  144.  The  rule  applied  to  written  in- 
struments. 
145.  The  decision  in  Estes  v.  Shoe 
Company  considered. 

151.  Pleading  fraud  or  illegality. 

152.  Pleading  fraud,  etc. —  Cases  ex- 

amined. 

154.  Further  rules  as  to  pleading 

fraud. 

155.  The  rule  applies  equally  to  peti- 

tions and  answers. 

157.  The    rule    applies    equally    to 

equitable  and  legal  causes. 

158.  Pleading  fraud  —  Illustrations. 
161.  Objection  may  be  waived. 


§  131.  Facts  are  to  be  pleaded  as  distinguished  from  con- 
clusions.—  The  underlying  theory  of  the  practice  act  is  that 
facts,  and  not  conclusions  of  law,  should  be  pleaded.  The  stat- 
ute provides  that  neither  presumptions  of  law  nor  matters  of 
which  judicial  notice  is  taken  need  be  stated  in  a  pleading.1  It 
further  provides  that  no  allegations  shall  be  made  in  a  pleading 
which  the  law  does  not  require  to  be  proved,  and  only  the  sub- 
stantive facts  necessary  to  constitute  the  cause  of  action  or  de- 
fense are  to  be  stated.2  This  last  provision  necessarily  excludes 
from  pleadings  all  mere  legal  fictions,  for  such  fictions  require 
no  proof  and  cannot  be  traversed.3  It  will  be  presumed  that  a 
( 1  ul  v  incorporated  college  of  medicine  has  power  to  issue  diplomas ; 
therefore  in  a  proceeding  which  involves  this  right  the  power 
need  not  be  specifically  alleged.4  As  courts  take  judicial  notice 
of  their  own  records,  an  amended  petition  need  not  contain  any 
averment  as  to  the  day  upon  which  the  original  petition  was 
filed,  though  the  fact  of  filing  it  on  such  day  be  an  essential  ele- 


i  Rev.  Stat.  1899,  sec.  632. 

2  Rev.  Stat  1899,  sec.  610. 

3  Gould  on  Plead.  (4th  ed.),  p.  48. 


4  State  ex  reL  v.  Gregory,  83  Mo.  123, 
132. 


§§  132,  133.]   CONCLUSIONS  OF  LAW  SHOULD  NOT  BE  ALLEGED.   89 

ment  of  the  right  of  recovery.1  Facts  must  be  stated  as  distin- 
guished from  conclusions  of  law.2  And  it  has  been  held  (in  a 
case,  however,  in  which  the  full  decision  does  not  appear)  that 
the  averment  that  there  was  a  total  failure  of  consideration  is  the 
statement  of  a  conclusion  of  law.3  Even  where  the  action  is  based 
upon  items  properly  recoverable  in  an  action  at  law,  the  petition 
must  show  the  facts  upon  which  the  cause  of  action  is  based.4  And 
this  is  especially  true  where  the  suit  is  one  in  equity.  Thus,  where 
plaintiff  sues  for  the  net  losses  upon  two  joint  adventures  between 
himself  and  defendant,  he  must  set  up  the  facts  which  show  the 
nature  and  result  of  the  adventures,  that  the  plaintiff  has  settled 
up  all  the  transactions  connected  with  the  ventures,  that  there 
has  been  a  loss  and  the  amount  of  such  loss.4  It  is  said  in  a  case 
decided  soon  after  the  adoption  of  the  practice  act  that  "  per- 
haps the  greater  portion  of  the  matters  stated  in  pleadings  are 
the  legal  results  of  what  actually  occurred,  rather  than  the  oc- 
currences themselves  as  they  transpired.  And  this  is  so  much 
the  case  that  it  has  been  said  these  ultimate  results  are  the  true 
issuable  facts  and  constitute  the  only  proper  object  of  averment  in 
pleading." 5  But  this  view  utterly  ignores  the  fundamental  change 
which  the  Code  is  designed  to  effect. 

§  132.  The  rule  applies  to  the  pleadings  of  both  parties. — 
In  Kerr  v.  Simmons 6  it  is  said  that  the  effect  of  the  practice  act 
is  to  abolish  general  averments  stating  conclusions  of  law  in  a 
petition  or  answer. 

§  133.  Pleading  compliance  with  a  statute. —  The  St.  Louis 
court  of  appeals  has  decided  that  a  general  averment  of  compli- 
ance with  the  requirements  of  a  statute  states  a  conclusion  of 
law  and  is  bad  pleading.7  But  the  petition  passed  upon  in  that 
case  was  one  in  mandamus,  and  no  reference  is  made  in  the  de- 
cision to  section  633,8  which  provides  that  in  pleading  a  statute, 
public  or  private,  it  shall  be  sufficient  for  the  party  to  allege  that 
the  act  was  done  by  the  authority  of  such  statute,  or  contrary  to 
the  provisions  thereof,  referring  in  some  general  terms  to  its  sub- 
ject-matter.9 

i  Barth  v.  Kansas  City  El.  R  Co.,  *  Scott  v.  Caruth,  50  Mo.  120. 

142  Mo.  535,  548.  6  Edgell  v.  Sigerson,  20  Mo.  494,  497. 

-'Story    v.    American    Ins.   Co.,   61  «  83  Ma  269,  275. 

App.  534;  Kansas  City  v.  Johnson,  78  "State  ex  rel.  v.  Hudson,  13  App.  61. 

Mo.  661.    See  also  g  173,  post.  8  Rev.  Stat.  1899. 

3  German  Bank  v.  Mulhall,  8  App.  9See  also  §  121,  ante. 
558. 


90  WHAT   SHOULD   BE   STATED   IN    PLEADING.       [§§  134-137. 

§  134.  Declaring  on  a  written  instrument. —  The  above  rule 
does  not  require  the  setting  out  in  full  of  written  instruments. 
In  declaring  on  such  instruments  it  is  sufficient  to  set  out  their 
legal  effect.1 

§  135.  Some  exceptions  to  the  rule.— There  are  cases  in 
which  the  statute  expressly  provides  that  the  statement  of  a  mere 
conclusion  of  law  shall  be  sufficient.  Thus  in  ejectment  plaintiff 
is  only  required  to  state  that  on  a  certain  day  he  was  entitled  to 
the  possession  of  the  premises  in  question,  and  that,  being  so  en- 
titled, defendant  afterwards  entered  into  such  premises,  and  un- 
lawfully withholds  from  plaintiff  the  possession  of  them.*  Under 
the  decisions  of  our  courts  replevin  is  another  such  action,  since 
it  is  only  necessary  for  plaintiff  to  state  that  he  is  the  owner  and 
entitled  to  the  possession  of  the  personal  property  described.3 
There  is  also  an  apparent  exception  to  the  above  rules  in  the 
pleading  of  city  ordinances,  it  being  sufficient  to  allege  that  an 
ordinance  was  "  duly  passed."  So,  too,  if  an  act  can  be  lawfully 
done  by  a  city  only  in  pursuance  of  an  ordinance,  an  averment 
that  the  act  was  done  by  the  city  is  sufficient,  without  setting 
forth  the  adoption  of  the  ordinance  authorizing  the  act.4 

§  136.  A  violation  of  the  rule  may  be  waived. —  Though  the 
statement  of  a  legal  conclusion  is  bad  pleading,  and  cannot  stand 
if  attacked  in  time,  yet  it  may  be  good  if  the  objection  to  it  is 
not  raised  until  after  verdict,  for  the  statement  of  a  legal  con- 
clusion which  presents  the  real  point  in  controversy  will  be  re- 
garded as  sufficient  after  verdict.5 

§137.  Pleading  conclusion  of  law — Illustrations. —  The 
averment  that  a  conveyance  was  fraudulent  is  not  the  statement 
of  a  fact.6  So  an  averment  in  an  action  of  trespass  that  plaint- 
iff was  entitled  to  the  exclusive  possession  of  the  premises  is  not 
the  statement  of  a  fact  but  of  a  conclusion  of  law.7  On  the 
other  hand,  a  petition  in  an  action  for  alienating  the  affections 
of  plaintiff's  husband,  which  states  that  defendant  wrongfully 

iMuldrow  v.   Caldwell,  7  Mo.  563;  4  See  §§  170-172,  post. 

Moore  v.  Platte,  8  Mo.  467.    This  point  s  Jackson  v.  St.  Louis,  L  M.  &  S.  R. 

is  fully  considered  in  §  144  et  seq.  Co.,    80    Mo.    147.     Consult  also    ch. 

2  Rev.  Stat.  1899,  sec.  3058;  Loehr  v.  XXXVIIL 

Murphy,  45  App.  519.  6Dannan  v.  Coleman,  8  App.  595. 

SMartin  v.  Block,  24  App.  60;  Bene-  The  method  of  pleading  fraud  is  con- 

dict  Mfg.  Co.  v.  Jones,  60  App.  219;  sidered  in  §  151  et  seq.,  post. 

Loehr  v.  Murphy,  45  App.  519;  Dillard  7  Garner  v.  McCullough,  48  Mo.  318. 
\.  McClure,  66  App.  488. 


§§  13S-141.]   CONCLUSIONS  OF  LAW  SHOULD  NOT  BE  ALLEGED.   91 

enticed,  influenced  and  induced  the  husband  to  live  separate 
and  apart  from  plaintiff,  thereby  depriving  and  intending  to  de- 
prive her  of  his  affection,  comfort,  society  and  support,  is  not 
objectionable  as  stating  merely  legal  conclusions.1  A  petition  in 
equity  to  set  aside  certain  deeds  contained  an  allegation  that 
certain  parties  were  served  b}^  publication  issued  on  a  non  est 
return,  and  that  the  order  of  publication  was  wholly  unauthor- 
ized. It  was  held  that  the  latter  affirmation,  being  a  mere  con- 
clusion of  law,  must  be  disregarded,  and  that,  therefore,  the 
petition  admitted  that  the  order  of  publication  was  made  on  a 
return  of  not  found,  and  was  for  that  reason  valid.2  The  allega- 
tion that  defendant,  as  sheriff,  "  wrongfully  and  illegally  sold  all 
of  such  property,  which  was  worth  $2,500,  to  satisfy  such  execu- 
tion, which  was  only  for  $27  and  costs,"  states  merely  a  conclu- 
sion of  law,  and  is  not  a  statement  of  any  fact  as  to  the  character 
or  manner  of  the  sale.2 

§  138.  Where  it  is  alleged  that  while  plaintiff  was  in  the  em- 
ploy of  defendant  he  was  required  by  defendant  to  work  in  a 
place  which  was  rendered  unsafe  and  dangerous  by  reason  of 
certain  negligent  acts  and  doings  of  men  engaged  in  repairing 
defendant's  factory,  in  consequence  of  which  he  was  injured,  the 
petition  is  sufficient.  Whether  this  constituted  a  breach  of  de- 
fendant's duty  is  a  conclusion  of  law,  which  plaintiff  is  not 
required  to  plead.3 

§  139.  In  a  mechanics'  lien  suit  the  plaintiff  alleged  that  his 
demand  became  due  on  a  day  specified,  and  that  within  four 
months  thereafter  he  filed  his  account  for  a  lien.  This  was  an 
allegation  of  a  matter  of  fact,  and  not  a  mere  conclusion  of  law, 
and  unless  controverted  by  the  answer  it  stood  admitted.4 

§  140.  It  is  sufficient  to  state  that  a  party  is  the  head  of  a 
family,  without  setting  out  the  facts  which  in  law  would  consti- 
tute him  such.5 

§  141.  In  a  bill  for  an  injunction  a  mere  allegation  that  irrep- 
arable injury  will  ensue  from  the  acts  complained  of  is  not  suf- 
ficient; traversable  facts  must  be  stated  in  the  bill,  which  show 
that  plaintiffs  have  not  an  adequate  remedy  at  law,  or  that  the 
injury  cannot  be  compensated  by  an  action  for  damages  as  such.6 

i  Nichols  v.  Nichols,  134  Mo.  187.  *  Henry  v.  Hinds,  18  App.  497. 

2Schiffman  v.  Schmidt,  154  Mo.  204.  5  State  to  use  v.  Hussey,  7  App.  597; 

3  Sackewitz  v.  American  Biscuit  Co.,  Duncan  v.  Frank,  8  App.  286. 

78  App.  144.  B  State  ex  reL  v.  Wood,  155  Mo.  425. 


92  "WHAT    SHOULD    BE    STATED    IN    PLEADING.       [§§  142,  143. 

§  142.  Where  the  defense  is  usury,  an  answer  is  not  good  which 
simply  alleges  that  usurious  interest  was  taken;  the  facts  consti- 
tuting the  usury  must  be  stated.1  In  an  action  on  the  bond  of  a 
public  administrator  the  answer  averred  that  an  application  had 
been  made  by  the  surety  for  his  discharge,  and  that  such  appli- 
cation was  made  "  after  due  notice  as  required  by  law."  The 
answer  then  set  out  the  record  of  the  proceedings  upon  the  hear- 
ing of  the  application,  which  record  contained  the  recital  that 
the  principal  was  present.  It  was  held  that  the  notice  was  suf- 
ficiently pleaded.2 

§  143.  Pleading  the  legal  effect.—  In  a  case  decided  very  soon 
after  the  adoption  of  the  practice  act,  it  was  held  by  Judge  Scott 
that  it  is  not  necessary  under  the  Code  that  the  facts  should  be 
pleaded  according  to  their  legal  effect,  but  that  the  facts  may 
be  stated  as  they  really  occurred.  The  case  was  one  to  recover 
damages  against  defendant,  who  had  aided  and  abetted  one  Ed- 
wards in  an  assault  on  plaintiff.  Under  the  common  law,  since 
all  were  principals  in  an  assault  and  battery  whether  they  actu- 
ally struck  the  blow  or  only  stood  by  aiding  or  counseling  the 
act,  the  petition  would  have  been  bad.  But  it  was  held  good 
under  the  Code.3  It  is  again  said  in  Alexander  v.  Campbell*  that 
facts  are  required  to  be  stated,  not  the  legal  effect  of  those  facts. 
In  Thomas  v.  Concordia  Cannery  Co.,5  which  was  an  action  to 
recover  damages  for  a  nuisance,  the  petition  contained  no  aver- 
ment that  the  acts  complained  of  were  done  either  negligently, 
unlawfully,  maliciously,  knowingly  or  wrongfully.  Defendant 
objected  that  the  petition  did  not  state  a  cause  of  action.  But 
the  court  held  that  it  was  not  necessary  to  charge  that  the  acts 
were  unlawfully  or  wrongfully  done;  that  it  was  only  necessary 
to  allege  the  substantive  facts  which  the  law  would  say  were  un- 
lawful or  wrongful,  and  that  whether  or  not  the  acts  complained 
of  constituted  a  nuisance,  and  were  therefore  unlawful  or  wrong- 
ful, was  a  question  of  law  to  be  passed  on  by  the  court,  (p.  358.) 
The  question  again  arose  in  Duff  v.  Fire  Association,6  which  was 
an  action  upon  an  oral  contract  for  insurance,  and  it  was  urged 

i  Davis  v.  Tuttle,  10  Mo.  201;  Bond  3  Page  v.  Freeman,  19  Mo.  421.    And 

v.  Worley,  26  Mo.  253.  a  case  in  which  the  same  position  is 

2  State  ex  reL  v.  Nolan,  99  Mo.  569.  taken  is  that  of  Goetz  v.  Ambs,  27 

Consult  also  §  143  et  seq.,  post   That  Mo.  28. 

conclusions  of  law  cannot  be  pleaded  4  74  Mo.  142. 

in  a  suit  for  divorce  is  shown  in  ch.  6  68  App.  350. 

XV,  §  383.  6 129  Mo.  460. 


§  14i.]    CONCLUSIONS  OF  LAW  SHOULD  NOT  BE  ALLEGED.        93 

that  plaintiff  must  set  out  in  his  petition  the  contract  as  the  law 
would  imply  it  in  case  the  written  policy  had  been  issued.  In 
holding  that  such  course  need  not  be  pursued,  the  court  says : 
"  The  facts  raised  by  mere  legal  implication  cannot,  under  our 
sytem  of  pleading,  be  considered  constitutive  facts  necessary  to 
be  averred  in  order  to  state  a  cause  of  action.  Such  constitutive 
facts  are  the  actualities  of  the  transaction.  A  legal  implication 
from  those  actualities  of  other  facts  may  authorize  the  use  of 
such  implied  facts  to  defeat  a  recovery,  but  it  cannot  be  essen- 
tial to  the  statement  of  the  cause  of  action,  which  arises,  if  at 
all,  upon  the  statement  of  the  actual  facts."  (p.  4:66.)  In  an  ac- 
tion upon  a  judgment  an  allegation  that  the  judgment  remains 
valid  and  in  full  force  is  equivalent  to  an  allegation  that  it  re- 
mains unpaid.1 

§  144.  The  rule  applied  to  written  instruments. —  In  declar- 
ing upon  a  written  instrument  or  contract  it  is  not  necessary  to 
set  it  out  in  precise  and  identical  terms,  but  it  will  be  sufficient  if 
it  is  pleaded  according  to  its  legal  meaning  and  effect.2  By  this 
is  intended  that  it  is  sufficient  if  the  petition  states  concisely  and 
in  ordinary  language  what  the  general  effect  of  the  written  agree- 
ment is.  But  where  an  action  is  brought  upon  a  promissory 
note  against  an  indorser,  it  seems  that  it  is  not  sufficient  to  aver 
merely  that  the  note  was  a  negotiable  note,  but  the  facts  must 
be  set  out  from  which  the  court  may  see  that  it  is  negotiable; 3 
though  there  is  one  case  which  holds  to  the  contrary.4  "Where 
the  petition  sets  out  the  drawing  and  negotiation  of  a  bill  of 
exchange  described  therein,  and  states  that  the  legal  effect 
thereof  is  an  assignment  by  the  drawer  to  the  payee  of  an  in- 
debtedness of  the  drawee  to  the  drawer,  this  does  not  tender  an 
issue  of  fact  as  to  whether  the  assignment  was  such  that  the  as- 
signee might  sue  as  the  sole  owner  of  the  fund.5  The  ground 
of  this  decision  is  that  the  mere  drawing  and  delivering  of  a  bill 
of  exchange  is  not  of  itself  a  transfer  of  the  debt  due  to  the 
drawer  by  the  drawee;  to  show  such  an  assignment  an  intention 
to  assign  must  appear.  But  the  allegation  of  certain  evidential 
facts,  coupled  with  the  statement  that  there  was  an  assignment 

1  Wise  v.  Loring,  54  App.  258.  4  Bateson  v.  Clark,  34  Mo.  31.     See 

2  Jones  v.  Louderman,  39  Mo.  287.  §  147,  post. 

3  Townsend  v.  Heer  Dry  Goods  Co.,  6  Bank  of  Commerce  v.  Bogy,  9 
85  Mo.  503;  Hart   v.  Harrison   Wire  App.  335. 

Co..  91  Mo.  414;  Jacobs  v.  Gibson,  77 
App.  214. 


'.'■i  WHAT    SHOULD    BE    STATED   IN    TLEADING.  [§  145. 

of  the  fund  and  an  intention  to  assign  it,  will  not  make  a  good 
petition,  nor  enable  the  payee  of  the  bill  to  recover  as  upon  an 
equitable  assignment,  where  such  bill  has  not  been  accepted  by 
the  drawee.  The  mere  statement  of  the  legal  conclusion  does 
not  help  the  petition.1 

§  145.  The  decision  in  Estes  y.  Shoe  Company  considered. 
In  a  very  recent  case  it  is  declared  by  one  of  the  judges  of  the 
supreme  court  that  it  is  not  only  allowable  to  plead  a  contract 
according  to  its  legal  effect,  but  that  it  must  be  so  pleaded; 
and  unless  it  is  so  pleaded,  the  pleading  is  demurrable.2  The 
writer  of  the  opinion  in  that  case  went  so  far  as  to  assert  that,  if 
a  contract  is  set  out  in  the  petition  in  hcec  verba,  the  petition  is 
bad  on  demurrer.  He  says:  "  The  rules  of  good  pleading  require 
that  the  instrument  relied  on  should  be  pleaded  by  its  legal  ef- 
fect, which  requirement  is  not  for  mere  form,  but  rests  on  sub- 
stantial reason.  The  pleading  is  addressed  to  the  court,  and  should 
state  the  pleader's  theory  of  his  case,  not  leaving  it  to  the  court 
to  construct  a  theory  as  best  it  may  from  the  evidence  set  out, 
and  not  leaving  his  adversary  in  the  dark  as  to  what  the  theory 
advanced  is,  or  what  construction  the  pleader  puts  upon  the  con- 
tract." (p.  583.)  The  decision  of  this  point  was  unnecessary  to 
the  determination  of  the  case,3  and  what  is  said  in  this  connec- 
tion must  therefore  be  considered  a  dictum;  and,  as  such,  it  is 
certainly  entitled  to  "  that  respect  which  is  due  to  the  writings 
of  a  learned  and  impartial  lawyer." 4  But  it  has  been  said  by 
the  supreme  court  that,  in  order  that  a  decision  may  operate  as  a 
binding  authority,  "  the  question  must  have  been  fairly  presented 
to  the  court  as  necessary  to  a  decision  in  the  case,  and  directly 
considered  and  decided." 5  And  it  is  added  that  such,  opinion  is 
not  conclusive  upon  questions  which  are  merely  collateral  to  the 
matter  actually  considered.5  The  court  of  appeals  also  holds 
that  an  appellate  court  is  concerned  only  with  what  has  been 
actually  decided  in  earlier  cases,  and  not  with  the  arguments  or 
illustrations  used  in  the  opinion.6 

1  Some  further  authorities  on  this  3  This  is  true  also  of  the  second  case 
point  will  be  found  in  chapter  XIII.     in  which  the  rule  is  announced. 

See  g  285.  4  Mapes  v.  Burns,  72  App.  411. 

2  Estes  v.  Desnoyers  Shoe  Co.,  155  5Gwin  v.  Waggoner,  116  Mo.  143, 
Mo.  577.    The  same  judge  reiterates    152. 

this  rule  in  Anderson  v.  Gaines,  156  6 State  to  use  v.  Koch,  47  App.  269. 
Mo.  064,  669. 


§  146.]   CONCLUSIONS  OF  LAW  SHOULD  NOT  BE  ALLEGED. 


95 


§  146.  I  have  urged  this  point  and  cited  these  authorities  be- 
cause the  above  dictum  is  a  radical  departure  from  the  spirit,  as 
well  as  from  the  letter,  of  the  Code.  For  if  plaintiff  must  plead 
the  contract,  not  as  it  actually  is,  but  according  to  its  legal  effect, 
is  this  not  pleading  a  conclusion  of  law  ?  1  apprehend  it  is  the 
duty  of  the  court  to  construe  the  written  instrument  which  is  set 
out  in  hcec  verba,  and  to  construe  it  regardless  of  what  plaintiff 
thinks  its  legal  effect  to  be,  or  whether  he  rightly  or  wrongly 
apprehends  its  effect.1  The  learned  judge  says  that  the  petition 
should  state  the  pleader's  theory  of  his  case,  and  not  leave  it  to 
the  court  to  construct  a  theory.  But  is  it  not  the  province  of  the 
court  to  correctly  construe  the  contract,  whatever  the  pleader's 
theory  of  it  may  be  ?  And  if  the  pleader  has  entirely  mistaken 
its  legal  effect,  yet,  if  he  has  set  forth  in  his  petition  facts  showing 
that  there  has  been  a  breach  of  the  contract  which  he  has  pleaded 
in  hcecverha,  when  that  contract  is  properly  construed,  is  it  not  the 
duty  of  the  court  to  grant  to  plaintiff  the  relief  to  which  he  is  en- 
titled, whatever  may  be  the  pleader's  theory  of  the  meaning  of  the 
instrument  ? 2  If  not,  it  is  fair  to  ask  what  advantage  the  code 
system  possesses  over  its  predecessor.  The  very  object  of  the 
new  system,  as  is  shown  by  the  almost  universal  consensus  of 
opinion  at  this  day,  is  to  remove  the  danger  to  the  litigant  re- 
sulting from  a  mistake  which  his  counsel  might  make  in  stating 
the  legal  effect  of  the  facts  constituting  his  cause  of  action, 
whether  those  facts  are  written  documents  or  matters  resting  in 
parol.  If  pleading  in  Missouri  is  to  be  controlled  by  common- 
law  rules,  litigants  are  in  as  pitiable  a  condition  as  before  the 
adoption  of  the  Code.  For,  under  the  rule  of  the  common  law, 
if  the  pleader  makes  a  mistake  in  stating  the  legal  effect  of  the 
contract,  it  is  a  fatal  variance,  since  the  court  cannot  give  judg- 
ment for  the  pleader  in  opposition  to  his  own  averments.3     Mr. 

1  See,  in  this  connection,  Payne  v.  standing  of  its  purport."  Sumner  v. 
Snell,  4  Mo.  238.  Tuck,  10  App.  269,  279. 

2  In  two  cases,  at  least,  our  courts  3  Gould  on  Pleading  (4th  ed.),  p.  146. 
have  so  held.  State  ex  rel.  v.  Will-  It  may  not  be  improper  to  say  in  this 
iams,  77  Mo.  463,  and  State  ex  rel.  v.  connection  that  in  the  year  1873  a 
Pace,  34  App.  458.  There  is  also  a  re-  series  of  articles  upon  the  English 
mark  of  Judge  Lewis,  when  he  was  Judicature  Bill  appeared  in  the  Lon- 
presiding  judge  of  the  St.  Louis  court  don  Saturday  Review.  In  one  of  those 
of  appeals,  which  is  worthy  of  remark,  articles  (which  was  published  in  the 
"Every  question,"  he  says,  "must  be  Review  of  April  12,  1873),  the  writer 
tested  by  the  real  record  of  the  cause,  contrasts  the  common-law  method 
and  not  by  an  unauthorized  under-  with  what  is  substantially  the  code  of 


96  WHAT    SHOULD    BE    STATED    IN   PLEADING.  [§   147. 

Could,  in  explaining  that  at  common  law  facts  only  are  to  be 
pleaded,  says  that  it  is  necessary  in  pleading  to  state  nothing 
but  facts,  "  nothing  but  facts  as  they  really  exist,  or  are  by  legal 
fiction  or  presumption  deemed,  to  exist."1  But  these  fictions,  he 
adds,  "  require  on  the  one  hand  no  proof,  and  on  the  other  they 
cannot  be  traversed."  (p.  48.)  Therefore,  if  in  Missouri  the  plaint- 
iff does  state  his  theory  of  the  law,  such  statement  is  not  trav- 
ersable, and  no  issue  can  be  made  on  it.  This  is  so  well  stated 
by  Mr.  Pomeroy  that  I  quote  from  his  work.  Speaking  of  the 
new  procedure,  he  says:  "The  issuable  facts  in  a  legal  action, 
and  the  facts  material  to  the  relief  in  an  equitable  suit,  should 
not  only  be  stated  to  the  complete  exclusion  of  the  law  and  the 
evidence,  but  they  should  be  alleged  as  they  actually  existed  or 
occurred,  and  not  their  legal  effect,  force  or  operation.  .  .  . 
Rejecting  as  it  does  the  technicalities,  the  fictions,  the  prescribed 
formulas,  and  the  absurd  repetitions  and  redundancies,  of  the 
ancient  common-law  system,  the  new  pleading  radically  differs 
from  the  old  in  no  feature  more  important  and  essential  than  this, 
that  the  allegations  must  be  of  dry,  naked,  actual  facts,  while  the 
rules  of  law  applicable  thereto,  and  the  legal  rights  and  duties 
arising  therefrom,  must  be  left  entirely  to  the  courts." 2  To  this 
I  need  only  add  that  the  legal  effect  of  a  fact  is  not  a  fact;  and 
it  is  a  contradiction  in  terms  to  call  it  so. 

§  147.  It  will  be  instructive  to  consider  briefly  the  former  de- 
cisions of  the  Missouri  courts  bearing  on  this  question.  In  Jac- 
card  v.  Anderson?  plaintiff  pleaded  the  note  sued  on  according 
to  its  legal  effect,  alleging  that  defendant,  "  by  his  negotiable 
note,"  promised  to  pay,  etc.  It  was  held  that  this  was  a  state- 
ment of  a  mere  conclusion  or  opinion  of  the  pleader,  and  not  the 
averment  of  a  fact  upon  which  issue  could  be  taken.  The  same 
ruling  was  made  in  two  subsequent  decisions.4  It  is  true  that 
there  is  one  decision  to  the  contrary.5  But  that  case  by  no  means 

the  American  states,  and  says:  "The  his  case  as  wisely  as  he  might  have 

first  striking  difference  is  this:  that  done. 

on  the  common-law  plan  a  plaintiff  is  1  Gould  on  Pleading  (4th  ed.),  p.  43. 

required  to  state,  not  the  facts,  but  2  Pomeroy,  Rem.   &    Rem.   Rights, 

what  he  considers  to   be  the  legal  sec.  529. 

effect  of  the  facts; "  and  he  pointedly  3  32  Mo,  188. 

adds  that,  if  his  advisers  take  a  wrong  *  Lindsay  v.   Parsons,  34  Mo.   422; 

view  of  a  doubtful  point,  the  plaintiff  Simmons  v.  Belt,  35  Mo.  461. 

loses,  not  because  he  is  not  entitled  to  8  Bateson  v.  Clark,  37  Mo.  31. 

recover,  but  because  he  has  not  put 


§  148.]   CONCLUSIONS  OF  LAW  SHOULD  NOT  BE  ALLEGED.        1)7 

holds  that  it  is  bad  pleading  to  set  out  the  instrument  in  hceo 
verba.  All  it  does  hold  is  that  it  is  not  necessary  to  so  set  it  out. 
Moreover,  the  case  of  Bateson  v.  Clark?  which  apparently  over- 
rules the  earlier  cases,  has  not  been  followed.  For  in  two  quite 
recent  cases  the  earlier  cases  are  approved.2  Those  cases  are  also 
followed  by  the  court  of  appeals.3  And  while  Bateson  v.  ClarJc1 
has  been  repeatedly  cited  on  other  points,  I  do  not  find  that  it 
has  ever  been  followed  as  to  the  point  in  question. 

§  148.  The  learned  judge  who  wrote  the  opinion  in  the  case 
under  consideration  does  not  notice  the  case  of  State  ex  rel.  v.  Will- 
iams? where  the  supreme  court  holds  that  it  is  sufficient  to  set  out 
the  contract  in  hcec  verba.  In  that  case  it  is  said  that  the  "  legal 
effect "  of  a  bond  is  pleaded  if  the  condition  of  the  bond  is  set 
out  in  hcec  verba.  It  is  true  the  court  suggests  that  the  petition 
in  that  case  might  have  been  more  specific.  But  that  remark 
has  reference  solely  to  the  allegations  concerning  the  breach, 
and  not  to  those  as  to  the  condition  of  the  bond.  The  case  is 
followed  by  the  Kansas  city  court  of  appeals.5  In  Blaine  v. 
Knapp?  plaintiff  not  only  set  forth  in  his  petition  in  hcec  verba 
the  contract  sued  on,  but  also  stated  his  understanding  of  its 
legal  effect.  If  the  reasoning  of  the  learned  judge  in  the  case 
now  under  discussion  is  correct,  a  demurrer  to  that  petition  would 
have  necessarily  admitted  plaintiff's  construction  (theory)  of  the 
contract.  But  the  court  there  expressly  holds  that  such  is  not 
the  result  of  a  demurrer ;  it  says :  "  The  averments  as  to  the  mean- 
ing of  the  contract  are  not  admitted  by  the  demurrer;  that  is  a 
question  for  the  court.  Facts  and  not  conclusions  of  law  are  ad- 
mitted by  a  demurrer."  (p.  248.)  And  the  court  proceeds  to  con- 
strue the  contract  and  to  state  what  is  its  legal  meaning.  And 
in  a  still  later  case  the  court  says :  "  It  is  the  facts,  not  the  con- 
clusions of  the  pleader,  which  are  admitted  "  by  a  demurrer.7 

i  Bateson  v.  Clark,  37  Mo.  31.  7  Knapp  v.  St.  Louis,  153  Mo.  560, 

2  Townsend  v.  Dry  Goods  Co.,  85  Mo.  572;  and  when  this  case  came  before 
503,  and  Hart  v.  Harrison  Wire  Co.,  91  the  other  division  of  the  supreme  court 
Mo.  414.  (see  156  Mo.  352),  that  division  asserted 

3  Jacobs  v.  Gibson,  77  App.  244.  the  same  doctrine.  In  Stoddard  v. 
*  77  Mo.  463.  Tredwell,  26  Cal.  294,  the  petition  not 
5Harkness  v.  Jones,  71   App.  289;    only  set  out  the  contract  in  hcec  verba, 

Jacobs  v.  Gibson,  77  App.  244.     Also  but  also  contained  a  statement  of  its 

in  the    case    of  an    indorsement  of  legal  effect  according  to  the  views  of 

waiver.     Hammett  v.  Trueworthy,  51  the  pleader.     It  was  held  that,  if  the 

App.  281.  construction  put  by  the  pleader  upon 

6 140  Mo.  241.  the  terms  of  the  contract,  which  was 
Mo.  Code  Pl. — 7 


98  WHAT   SHOULD    BE   STATED    IN    TLEADING.       [§§  149-151. 

§  149.  If  the  dictum  in  the  Estes  case  is  to  become  the  law 
of  this  state,  then  pleaders  under  the  Code  will  be  held  to  a 
more  rigid  adherence  to  technicality  than  were  the  practitioners 
under  the  common  law.  For  at  common  law  it  was  sufficient  to 
set  out  the  contract  sued  on  in  hcec  verba.  "In  actions  ex  con- 
tractu" says  Mr.  Gould,  "the  declaration  must  distinctly  state 
the  nature  and  essential  parts  of  the  contract,  either  in  the  terms 
of  it  or  in  substance  and  according  to  its  legal  effect,  together 
with  the  breach." l  And  Judge  Bliss,  speaking  of  the  rule  at  com- 
mon law,  says  that  the  pleader  was  not  under  an  imperative  obli- 
gation thus  to  plead,  for  it  was  always  sufficient  to  set  forth  the 
very  words  of  the  instrument,  and  if  it  was  so  pleaded  the  court 
would  judge  of  its  legal  effect.  And  he  adds :  "  The  pleader  will 
be  allowed  to  give  it  in  hcec  verba,  for  that  would  be  a  statement 
of  the  facts,  and  the  wThole  matter  would  be  before  the  court."2 

§  150.  I  cannot  better  close  the  discussion  of  this  case  than  by 
using  the  words  of  Sherwood,  J.,  in  Hoester  v.  Sammelmann:  * 
"  If  the  facts  are  stated,  the  legal  conclusion  follows  as  night  fol- 
lows day,  and  so  no  statement  of  what  conclusion  the  law  draws 
is  necessary."     (p.  C24.) 

§  151,  Pleading  fraud  or  illegality. —  In  view  of  the  above 
rule  forbidding  a  statement  by  the  pleader  of  conclusions  of  law, 
the  question  has  frequently  arisen  as  to  the  proper  method  of 
pleading  fraud  or  illegality.  And  it  is  now  settled,  in  this  state 
at  least,  that  where  fraud  is  the  ground  of  the  action,  plaintiff 
must  allege  all  the  circumstances  essential  to  the  support  of 
the  charge  with  such  certainty  that  defendant  may  know  what 
he  is  called  upon  to  answer.4  There  is  one  decision  of  the  court 
of  appeals  in  which  a  distinction  is  drawn  between  contracts 
which  are  rendered  voidable  by  reason  of  fraud  and  those  which 
are  absolutely  void ;  and  it  is  held  that  if  the  fraud  is  such  as  to 
render  the  agreement  void  ab  initio,  it  need  not  be  set  up  in  the 
answer,  but  may  be  proved  under  a  general  allegation;  but  that, 
on  the  other  hand,  if  the  contract  is  only  voidable  and  not  void, 
it  is  necessary  to  plead  specially  the  circumstances  of  the  fraud.5 

thus  set  out  in  hcec  verba,  was  a  false  2  Bliss,  Code  Pleading,  sec.  158. 

one,  such  wrong  construction  would  3 101  Mo.  619. 

not  render  the  petition  bad,  but  the  4  Duffy  v.  Byrne,  7  App.  417.    That 

averments  as  to  the  legal  effect  of  the  the  rule  also  applies  to  answers  will  be 

contract  would  be  regarded  as  surplus-  shown  later.    See  £§  152,  155,  post. 

age.  5  White  v.  Middles  worth,  42  App.  808. 
i  Gould  on  Pleading  (4th  ed.),  p.  109. 


§  152.]   CONCLUSIONS  OF  LAW  SHOULD  NOT  BE  ALLEGED.        99 

This  ruling  is  based  upon  the  principle  of  law  that  where  a  cause 
of  action  which  once  existed  has  been  determined  by  some  mat- 
ter which  subsequently  transpired,  such  new  matter  must  be  spe- 
cially pleaded;  but  if  the  cause  of  action  alleged  never  existed, 
because  it  was  so  tainted  with  fraud  in  its  inception  as  to  be  ab- 
solutely void,  then  the  defense  may  be  made  under  a  general 
denial.1  This  position  is  supported  by  several  decisions  of  the 
supreme  court.2  The  principle  is  the  same  where  a  contract  is 
vitiated  by  reason  of  illegality  or  immorality.  Where  the  ille- 
gality appears  from  the  contract  itself,  it  may  be  shown  under  a 
general  denial.  But  if  such  illegality  does  not  appear  from  the 
contract  itself  or  from  the  evidence  necessary  to  prove  it,  but 
depends  upon  extraneous  facts,  the  defense  is  new  matter,  and 
must  be  pleaded  in  order  to  be  available.3  The  decision  above 
referred  to 4  is  by  the  Kansas  City  court  of  appeals.  More  re- 
cently the  St.  Louis  court  of  appeals  has  rendered  a  decision  to 
the  same  effect,  holding  that  in  an  action  on  a  writing  it  may  be 
shown  under  a  general  denial  that  the  signature  of  the  defend- 
ant was  procured  through  the  secret  and  fraudulent  substitution 
of  the  writing  in  place  of  another,  which  the  defendant  supposed 
he  was  signing.5 

§  152.  Pleading  fraud,  etc. —  Cases  examined. —  In  Edgell  v. 
Sigerson*  decided  in  1855,  the  answer  alleged  that  certain  words 
were  "  fraudulently  inserted "  in  a  certain  note  after  its  execu- 
tion by  the  holder,  and  also  alleged  that  a  certain  judgment  was 
"  obtained  by  fraud  and  by  perjury  committed  on  the  trial."  This 
answer  was  held  by  the  supreme  court  to  sufficiently  plead  fraud, 
the  court  saying:  "Under  the  former  system  it  was  sufficient  to 
state  this  matter  in  this  general  form.  Fraud  usually  consisting 
of  a  great  multiplicity  of  facts  and  circumstances,  it  was  found 
by  experience  highly  inconvenient,  if  not  quite  impracticable,  to 
set  them  forth  with  particularity,  and  hence  this  general  mode 
of  stating  this  matter  of  defense  forced  itself  into  use  and  was 
approved  by  the  courts;  and  we  see  no  reason  for  holding  other- 
wise under  the  new  code."    (p.  496.)    In  1870  the  supreme  court 

xOf   course,   if  the  fraud  can    be  3  Kansas    City    School    District   v. 

shown  under  a  general  denial,  that  is  Scheidley,  138  Ma  672;  McDearmott 

equivalent  to  saying  that  the  facts  v.  Sgdgwick,  140  Mo.  172. 

constituting  the  fraud  need  not  be  4  White  v.  Middlesworth,  42  App. 

set  out  368. 

2  Green  way  v.  James,  34  Mo.   326;  5  Kingman  v.  Shawley,  61  App.  54. 

Corby  v.  Weddle,57  Mo.  452,  and  others.  6  20  Mo.  494. 


100  WHAT    SHOULD   BE   STATED    IN    TLEAD1NO.  [§  153. 

adheres  to  this  view,  and  says  that  it  is  sufficient  to  allege  fraud 
generally,  without  going  into  its  history  and  details.1  But  the 
decision  in  that  case  apparently  limits  the  doctrine  to  cases  in 
which  fraud  is  set  up  as  a  defense.  In  Plant  Seed  Co.  v.  Michel 
Plant  (&  S  d  Co.,2  decided  in  18S6,  the  question  came  up  on  an 
allegation  of  fraud  in  the  petition,  and  the  court  held  that  the 
defendant's  fraud  is  sufficiently  well  pleaded,  because  under  our 
practice  act  a  general  allegation  of  fraud  is  suilicient.  The  two 
preceding  cases  are  cited  as  authority,  the  court  adding:  "Nor 
is  it  conceivable  how  a  fraudulent  intent  and  motive  is  capable 
of  a  more  specific  designation  than  a  mere  statement."  (p.  586.) 
But  that  the  extension  of  this  rule  to  the  stating  of  a  cause  of 
action  does  not  now  meet  the  approval  of  the  supreme  court  ap- 
pears from  its  decision  in  Clough  v.  Ilolden?  in  which  it  is  held 
that  in  an  action  on  a  note  a  general  allegation  in  the  answer 
that  the  note  was  procured  by  fraud  is  sufficient,  citing  the  Edgell 
case,4  among  others,  as  authority.  But  the  court  goes  on  to  say: 
"  It  may  be  as  well  to  remark  that  the  case  of  Edgell  v.  Sigerson* 
(and  others  mentioned)  have  never  been  overruled,  but  they  only 
held  that  pleas  of  fraud  in  general  terms  were  good  in  an  answer, 
and  that  the  fraud  charged  referred  only  to  matters  stated  in  the 
petition.  The  bare  allegation  of  fraud  has  never  been  sustained 
as  sufficient  under  our  code,  either  in  law  or  equity.  We  have 
always  required  the  facts  constituting  the  fraud  to  be  averred. 
A  satisfactory  reason  for  the  distinction  between  an  answer  or 
other  pleading  and  a  petition  in  this  respect  would  be  hard  to 
give.     The  writer  will  not  attempt  one."     (p.  353.) 

§  153.  In  1883  the  question  was  again  before  the  supreme 
court  in  a  case  in  which  it  was  alleged  in  the  petition  that  an 
allowance  in  the  probate  court  was  procured  by  fraud,  and  the 
language  of  the  pleading  was  quite  similar  to  that  used  in  Ed- 
.  Sigerson^  above  cited ; 4  the  averment  being  that "  the  allow- 
ance was  procured  by  the  fraudulent  representation  that  the  note 
was  valid."  The  supreme  court  held  that  this  allegation  was 
but  a  conclusion  of  law  and  was  insufficient.5  In  the  case  of 
Hoester  v.  Sammelmann*  decided  in  1890,  the  petition  charged 
that  defendant,  "intending  to  cheat  and  defraud  plaintiff,"  did 
certain  acts.     The  court,  speaking  through  Sherwood,  J.,  says: 

iFox  v.  Webster,  46  Mo.  161.    Sea  <20Mo.  494, 

also  Goodson  v.  Goodson,  140  Mo.  208.  6  Smith  v.  Sims,  77  Mo.  2G9. 

-  .'■;  A]  p.  579.  6ioi  Mo.  019. 
3 115  Mo.  §36. 


§§  154, 155.]     conclusions  or  law  should  not  be  alleged.     101 

"  General  allegations  of  fraud,  or  other  general  allegations,  no 
facts  being  stated,  are  but  legal  conclusions,  and  for  that  reason 
insufficient.  To  say  that  a  man  acted  fraudulently  or  improperly, 
without  specifying  what  he  did,  is  equivalent  to  making  the 
pleader  the  sole  judge  of  the  sufficiency  of  his  pleadings  and 
substituting  his  judgment  for  that  of  the  court.  If  the  facts  are 
stated,  the  legal  conclusion  follows  as  night  follows  day,  and  so 
no  statement  of  what  conclusion  the  law  draws  is  necessary." 
(p.  624.) l  The  decision  of  the  case  of  Jfateer  v.  Missouri  Pac. 
R.  Co?  did  not  turn  upon  the  question  whether  fraud  was  prop- 
erly pleaded,  since  the  court  held  that  there  was  no  evidence  of 
fraud  warranting  a  submission  of  the  case  to  the  jury.  But  the 
language  of  the  opinion  was  such  as  to  show  that  the  court  did 
not  consider  fraud  well  pleaded,  because  there  was  no  statement 
of  any  traversable  fact  constituting  the  fraud.  And  in  comment- 
ing upon  an  instruction  which  had  been  improperly  given  for 
the  plaintiff,  Gantt,  J.,  says:  "This  instruction  well  illustrates 
the  vicious  pleading  which  had  stated  no  substantive  fact  upon 
which  to  hinge  the  charge  of  fraud.  Of  course,  as  no  fraud  was 
specified,  when  the  court  came  to  instruct  it  could  not,  as  re- 
quired by  all  correct  practice,  confine  plaintiff  to  the  tricks  or 
artifices  charged  in  the  petition,  but  the  jury  were  given  a  rov- 
ing commission  to  scent  out  and  find  some  artifice  or  trick, 
whether  in  the  case  or  not.  (p.  353.)  In  Wood  v.  Evans?  speak- 
ing of  a  charge  of  fraud  in  a  petition,  Smith,  P.  J.,  says:  "  The 
fraud  should  have  been  circumstantially  stated,  so  that  the  court 
could  see  that  the  misrepresentation  was  of  something  material, 
constituting  an  inducement  or  motive  to  the  act  of  plaintiff,  and 
by  which  he  was  actually  misled  to  his  injury."    (p.  233.) 

§154.  Further  rules  as  to  pleading  fraud. —  In  pleading 
fraud  it  is  not  sufficient  that  the  pleader  alleges  his  belief  in  the 
existence  of  fraud ;  the  fraud  must  be  directly  charged.4  Thus, 
an  allegation  in  a  petition  that  plaintiff  is  informed  and  believes 
that  a  judgment  debtor  transferred  his  property  to  another  for 
the  purpose  of  defrauding  and  delaying  his  creditors  is  not  suf- 
ficient.5 

§  155.  The  rule  applies  equally  to  petitions  and  answers. — 
The  position  was  taken  in  some  of  the  earlier  cases  that  a  general 
averment  of  touiLis^joi^kMii  tiMj^l* HUT  (3^e»452,  ante.)    But 


ri  App.  394. 
Mo.  AGO.  J  /     /  V       VlSJ^A^Mp^d-fco-  +.  Hubert,  150 

2 105  xjj&il  V  ^  VyLji  Mo.  620. 

NEW  MEXICO 


102  AY  HAT    SnOULD   BE    STATED    IN    PLEADING.  [§  156. 

this  position  has  been  abandoned,  and  our  courts  now  follow  the 
construction  given  to  the  Code  by  the  courts  of  New  York,  from 
which  state  the  Missouri  Code  was  taken.1  In  the  Nichols  case,1 
the  court  says  that  logical  and  legal  consistency  require  that  an 
answer  should  as  necessarily  state  the  constitutive  facts  of  the 
fraud  relied  on  as  that  a  petition  should  do  so;  adding,  that  there 
is  as  little  reason  for  making  a  distinction  in  this  regard  between 
petitions  and  answers  as  there  is  for  saying  that  a  petition  is  not 
good  in  equity  unless  it  sets  forth  the  facts  constituting  the  fraud, 
but  that  it  may  be  good  at  law,  since  we  have  in  this  state  but 
one  form  of  action.  In  First  National  Bank  v.  Rohrer?  the 
charge  of  fraud  appeared  in  the  answer,  and  the  allegation  was 
that  a  certain  mortgage  was  made  with  the  intent  to  defraud, 
hinder  and  delay  defendants  and  others  as  creditors  of  the  mort- 
gagor. This  allegation  was  held  insufficient  even  in  an  answer, 
and  it  is  said  that  if  defendants  had  purposed  assailing  the  mort- 
gage upon  the  ground  of  fraud,  because  of  its  having  been  with- 
held from  record  for  a  fraudulent  purpose,  such  fact  should  have 
been  alleged.  So  also  in  Goodson  v.  Goodson,3  the  charge  of  fraud 
appeared  in  the  answer.  Defendant,  in  order  to  escape  the  con- 
sequence of  failing  to  collect  a  claim  due  the  estate  of  which  she 
was  administratrix,  alleged  that  she  was  prevented  from  taking 
proper  proceedings  against  the  debtor  "  by  reason  of  his  repre- 
sentations, action  and  fraudulent  conduct,  by  which  she  was 
fraudulently  induced  to  believe  that  he  fully  intended  to  settle 
with  her."  *  This  general  allegation  of  fraud  was  held  to  be 
insufficient. 

§  156.  It  may  therefore  be  considered  as  the  settled  law  of 
Missouri  that,  in  any  pleading,  whether  a  petition,  an  answer  or 
a  reply,  a  general  allegation  of  fraud  is  not  sufficient,  but  the 
facts  constituting  the  fraud  must  be  set  out  and  detailed.5  In- 
deed, this  is  one  instance  in  which  it  would  seem  that  the  prin- 
ciples of  the  common  law  were  perhaps  more  conducive  to  jus- 
tice than  those  applied  by  the  courts  to  the  Code.  For  Chitty 
says,  in  his  work  on  Pleading,  that  a  release  may  be  met  by  a 
plea  of  fraud  or  duress,  "and,"  he  well  adds,  "it  is  unnecessary 
and  injudicious  to  state  the  particulars  of  the  fraud."6 

1  See  the  cases  "cited  in  Nipbj0%Af.  ,  6,  The  above  rule  as  to  pleading  fraud 
Stevens,  123  Mo.  iff*  **  'vapplies  equally  to  the  pleading  of  du- 

2 138  Mo.  369.  ress,  malice  and  kindred  matters.    See 

3 140  Mo.  '306.  §g  176,  177,  post 

4  This  averment  is  quite  similar  to  6  1  Chitty,  Plead.  (16th  Am.  ed.), 
that  in  Edgell  v.  Sigerson,  §  152,  ante.    p.  608. 

V;  ' 


§§  157-60.]   CONCLUSIONS  OF  LAW  SHOULD  NOT  BE  ALLEGED.   103 

§  157.  The  rule  applies  equally  to  equitable  aud  legal  causes. 

It  is  sometimes  urged  that  while  in  equity  it  is  necessary  to  set 
forth  the  facts  constituting  the  fraud,  this  is  not  required  in  an 
action  at  law.  But,  whatever  may  have  been  the  rule  before  the 
adoption  of  the  Code,  there  can  be  no  question  that  since  its 
adoption  the  rule  is  the  same,  whether  the  proceeding  be  one  in 
equity  or  at  law,  since  there  is  under  the  Code  but  one  form  of 
action.  If  fraud  is  necessary  to  be  pleaded  at  all,  there  is  as 
much  necessity  that  the  pleader  should  set  forth  the  constitutive 
facts  when  asking  for  legal  relief  as  there  is  when  asking  for 
equitable  relief.1 

§  158.  Pleading  fraud  —  Illustrations.—  In  an  action  for  de- 
ceit it  is  not  necessary  to  charge  that  the  false  representations 
were  made  with  intent  to  deceive;  it  is  sufficient  to  state  facts 
from  which  the  intent  may  be  inferred.2  If  the  petition  states 
that  certain  representations  were  made  by  defendant  to  plaintiff, 
that  plaintiff  relying  on  those  representations  was  induced  to 
make  a  certain  purchase,  and  that  such  representations  were 
false,  it  states  a  good  cause  of  action.3  Where  a  petition  or  an- 
swer challenges  a  settlement  upon  the  ground  of  fraud  or  mis- 
take, it  must  specifically  set  forth  the  fraud,  the  errors  or  mistakes 
complained  of.4  The  allegation  that  defendant  as  sheriff  "  wrong- 
fully and  illegally  sold  all  of  such  property,  which  was  worth 
$2,500,  to  satisfy  such  execution,  which  was  only  for  $27  and 
costs,"  states  merely  a  conclusion  of  law,  and  is  not  a  statement 
of  any  fact  as  to  the  character  or  manner  of  the  sale.5  On  the 
other  hand,  an  averment  that  the  debts  due  from  a  mortgagor  to 
the  mortgagee  were  largely  overstated,  and  that  this  was  inten- 
tionally done  to  defraud  or  delay  other  creditors  of  the  mort- 
gagor, is  not  the  statement  of  a  mere  conclusion  of  law  but  of  a 
fact.6 

§  159.  Where  the  basis  of  the  action  is  that  a  defendant  cor- 
poration fraudulently  colluded  with  its  president  to  convert 
stock  belonging  to  the  plaintiff,  it  is  sufficient  simply  to  aver 
that  fact,  without  specifying  the  acts  which  constituted  the 
fraudulent  collusion.7 

§  160.  In  Williams  v.  Chicago,  S.  F.  &  Col.  E.  Co.,6  the  rule  is 
applied  to  a  case  where  plaintiff  charged  that  defendant's  engi- 

1  Clough  v.  Holden,  115  Mo.  336,  353;  »  Sohiffman  v.  Schmidt,  154  Mo.  204 
Nichols  v.  Stevens,  123  Mo.  96,  118.  6  Whitehill  v.  Keen,  79  App.  125. 

2  Scott  v.  Haynes,  12  App.  597.  7  Withers  v.  Lafayette  County  Bank, 

3  Kenny  v.  James,  50  Mo.  316.  67  App.  115. 

*  Marmon  v.  Waller,  53  App.  610.  8 112  Mo.  463. 


104  WHAT    SHOULD    BE    STATED    IN   PLEADING.  [§   101. 

neer,  whose  decision  was  by  the  terras  of  the  contract  to  be 
conclusive  upon  the  parties,  fraudulently  failed  to  make  the 
necessary  measurements,  and  it  was  there  held  that  the  facts 
constituting  the  fraud  in  the  measurements,  or  in  the  failure  to 
make  them,  must  be  set  out.  The  rule  is  also  held  to  apply  to 
a  bill  in  equity  to  set  aside  a  conveyance  because  made  in  fraud 
of  creditors.1 

§  161.  Objection  may  be  waived. —  The  point  that  fraud  is 
not  well  pleaded  may  be  waived  by  the  adversary  party;  and  it 
is  waived  if  no  objection  is  raised  until  after  verdict.2 

i  Eeed  v.  Bott,  100  Mo.  62.  2  Wilcoxson  v.  Darr,  139  Ma  660. 


CHAPTER  VIII. 


APPLICATION  OF  THE  ABOVE  EULES  TO  SPECIFIC  ISSUES  AND 

CAUSES. 


162.  Pleading  conditions  precedent. 
164  Pleading  proviso  or  exception. 
165.  Pleading  laws. 

167.  Pleading  law  creating  munici- 

pal corporation. 

168.  Where    the    law    has    been 

amended. 

169.  Laws  of  another  state. 


170.  Pleading  ordinance. 

171.  Mode  of  pleading  ordinance. 

173.  Pleading  powers  of  public  of- 

ficers. 

174.  Pleading  ratification. 

175.  Pleading  a  judgment. 

176.  Pleading  duress. 

177.  Pleading  malice. 


§162.  Pleading  conditions  precedent. —  Section  634 l  pro- 
vides that  in  pleading  the  performance  of  a  condition  precedent 
in  a  contract  it  shall  not  be  necessary  to  state  the  facts  showing 
such  performance,  but  it  may  be  stated  generally  that  the  party 
duly  performed  all  the  conditions  on  his  part;  if  this  allegation 
is  controverted,  the  party  pleading  performance  must  establish 
at  the  trial  the  facts  showing  it.  This  provision  applies  only  to 
contracts  and  to  such  conditions  as  are  expressed  in  them.  In 
pleading  conditions  imposed  by  law,  an  allegation  of  due  per- 
formance does  not  tender  an  issue  of  fact.  The  rules  respecting 
the  mode  of  pleading  conditions  precedent  other  than  in  con- 
tracts are  not  substantially  changed  by  the  Code.2 

§  163.  "Where  an  act  is  to  be  done  on  the  part  of  the  plaintiff 
as  a  part  of  the  contract,  he  must  allege  in  his  petition  that  he 
has  performed  it;  but  this  rule  does  not  apply  to  a  mere  incident 
of  the  contract.3  A  provision  in  a  building  contract  that  pay- 
ment shall  be  made  on  the  estimate  and  certificate  of  the  archi- 
tects is  a  condition  precedent,  and  should  be  pleaded  and  its  per- 
formance alleged  and  proved;  but  no  special  statement  of  facts 
showing  the  performance  is  necessary:  the  provisions  of  section 
634  apply.4  The  rule  laid  down  in  section  634  does  not,  it  seems, 
apply  to  proceedings  for  mandamus? 


i  Rev.  Stat.  1899. 

2  Parks  v.  Heman,  7  App.  14.    See, 
however,  §§  165.  166,  post. 

3  Owens  v.  Geiger,  2  Mo.  39. 

<  Roy  v.  Boteler,  40  App.  213.     And 


the  same  rule  is  applied  in  a  case  in- 
volving the  building  of  a   railroad. 
Williams  v.  Chic,  S.  F.  &  C.  R.  Co., 
112  Mo.  463. 
5  State  ex  reL  v.  Hudson,  13  App.  61. 


106  WHAT   SHOULD   BE   STATED    IN   PLEADING.       [§§  164-1(37. 

§  164.  Pleading  proviso  or  exception. —  A  proviso  in  the  nat- 
ure of  an  exception  embodied  in  the  contract  sued  on  must  be  set 
up  in  the  petition,  and  the  facts  pleaded  must  show  a  liability 
consistent  with  such  proviso.1  In  pleading  a  statute  which  de- 
fines an  offense,  if  there  is  an  exception  so  incorporated  with  the 
clause  defining  the  offense  that  it  becomes  in  fact  a  part  of  the 
description,  it  cannot  be  omitted  in  the  pleading.2 

§  165.  Pleading  laws. —  It  is  not  necessary  to  set  forth  any 
statute,  public  or  private,  or  any  special  matter  thereof;  but  it  is 
sufficient  to  allege  that  the  act  was  done  by  the  authority  of  such 
statute,  or  contrary  to  its  provisions,  naming  the  subject-matter 
of  the  statute,  or  referring  to  it  in  some  general  terms  with  con- 
venient certainty.3  And  in  pleading  a  private  statute  or  a  right 
derived  therefrom,  it  is  sufficient  to  refer  to  the  statute  by  its 
title  and  the  date  of  its  passage;  the  court  will  then  take  judi- 
cial notice  of  it.4  An  averment  that  a  tax  was  "  duly  levied  " 
is  equivalent  to  pleading  the  substance  of  the  law  under  which 
it  was  levied,  and  is  sufficient  to  authorize  the  reception  of  the 
law  in  evidence.5 

§  166.  In  pleading  a  public  act,  neither  the  title  nor  the  date 
of  its  enactment  need  be  recited.6  But  if  the  party  who  seeks 
to  avail  himself  of  the  provisions  of  the  statute  refers  to  it  merely 
by  its  title,  he  thereby  makes  the  title  material  and  must  recite 
it  correctly.7  If  the  party  desires  to  avail  himself  of  the  provis- 
ions of  such  a  statute,  he  need  only  state  the  facts  which  bring 
his  case  clearly  within  its  provisions.8  Thus,  the  general  school 
law  makes  all  school  districts  corporations,  and,  in  pleading,  the 
act  need  not  be  set  forth,  since  the  court  will  take  judicial  notice 
of  it.9 

§  167.  Pleading  law  creating  municipal  corporation. —  A 
public  act  creating  a  municipal  corporation  need  not  be  pleaded, 
and  an  allegation  that  it  is  a  corporation  duly  incorporated  under 
and  by  virtue  of  a  certain  act  is  sufficient.10     In  an  action  against 

i  Brecheisen  v.  Coffey,  15  App.  80.  7  Eckhert  v.  Head,  1  Mo.  593. 

2  State  v.  Elam,  21  App.  290.  8  Hance  v.  Wabash  Western  R  Co., 

3 Rev.  Stat  1899,  sea  633.  56  App.  476;  Reynolds  v.  Chicago  & 

*  Rev.  Stat.  1899,  sec.  632;  City  of  Alton  R  Co.,  85  Ma  90;  Emerson  v. 

Mexico  v.  Cauthorn,  25  App.  285.  St.  Louis  &  Han.  R  Co.,  Ill  Ma  161. 

5  Kansas  City  v.  Johnson,  78  Mo.  661.  9  School  District  v.  Holmes,  53  App. 

6  Eckhert  v.  Head,  1  Mo.  593;  Hance  487. 

v.  Wabash  Western  R  Co.,  56  App.       mRev.  Stat.  1899,  sea  631;  Nutter  v. 
476.  Chicago,  R  L  &  Pac.  R  Co.,  22  App. 


§§  168-170.]       APPLICATION  OF  THE  RULES.  107 

a  city,  an  averment  that  it  is  a  corporation  created  and  organized 
under  the  provisions  of  article  Y  of  chapter  30  of  the  Revised 
Statutes  of  18S9,  sufficiently  alleges  that  it  was  incorporated  as  a 
city  of  the  fourth  class.1  And  the  rule  applies  to  school  districts.2 
A  private  act  incorporating  a  town  must  be  pleaded  and  proved, 
but  need  only  be  pleaded  by  its  title  and  date  of  passage.3 

§  168.  Where  the  law  has  been  amended. —  If  delinquencies 
have  been  committed  which  authorize  the  collection  of  a  penalty 
by  any  person  moving  in  the  matter,  and  they  were  committed 
before  an  amendment  of  the  statute  providing  that  only  a  tax- 
payer can  maintain  the  action,  but  the  action  is  not  brought  until 
after  such  amendment,  the  petition  must  show  that  the  plaintiff 
possesses  the  qualifications  required  by  the  amended  act.4 

§  169.  Laws  of  another  state. —  The  laws  of  a  sister  state 
must  be  alleged  and  proved  like  any  other  issue  of  fact;  other- 
wise they  will  not  be  considered  by  the  court.5  And  it  is  not 
sufficient  to  plead  such  a  law  by  the  number  of  the  chapter  in 
which  it  is  found ;  its  terms,  tenor  or  effect  must  be  set  out.6  This 
rule  applies,  however,  only  where  the  action  or  defense  rests  im- 
mediately on  the  foreign  law,  since  in  such  case  the  law  is  a  sub- 
stantive fact.  Eut  where  the  law  is  merely  evidentiary,  and  the 
action  is  hot  founded  upon  it,  it  need  not  be  pleaded.7  This 
modification  of  the  rule  applies  also  to  the  pleading  of  a  city 
ordinance.8 

§  170.  Pleading  ordinance. —  Where  a  party  bases  his  right 
to  recover  upon  a  city  ordinance,  or  seeks  to  justify  an  act  done 
by  him  under  such  ordinance,  he  must  plead  the  ordinance.9  In 
an  action  against  a  railroad  company  for  an  injury  caused  by  its 
running  its  cars  at  an  excessive  rate  of  speed,  if  the  action  is 
based  upon  the  theory  that  an  ordinance  regulating  the  rate  of 
speed  was  violated,  such  ordinance  must  be  pleaded.10    "Where 

328;  Bowie  v.  Kansas  City,  51  Mo.  454;  3  Garret  v.   Conklin,   52  App.   654; 

Chillicothe  Savings  Ass'n  v.  Ruegger,  McDonald  v.  Bankers'  Life  Ass'n,  154 

60  Mo.  2ia  Mo.  618. 

1  Eubank  v.  Edina,  88  Mo.  650.  6  McDonald  v.  Bankers'  Life  Ass'n, 

2  School  District  v.  Holmes,  53  App.  154  Mo.  618. 

487.  7  Banchor  v.  Gregory,  9  App.  102. 

3  O'Brien  v.  "Wabash,  St.  L  &  Pac.  8  Senn  v.  Southern  Ry.  Co.,  135  Mo. 
R.  Co.,  21  App.  12;  Apitz  v.  Missouri    512. 

Pac.  R.  Co.,  17  App.  419;   Harlan  v.  *>Mooney  v.  Kennett,  19   Mo.  551; 

Wabash,  St.  L.  &  Pac.  R  Co.,  18  App.  Givens  v.  Van  Studdiford,  86  Mo.  149. 

483;  State  ex  reL  v.  Oddle,  42  Ma  210.  '°  Nutter  v.  Chicago,  R.  L  &  Pac.  R. 

*  Barker  v.  Phelps,  39  App.  288.  Co.,  22  App.  328. 


108  WHAT    SnOULD   BE    STATED   IN   TLEADING.       [§§  171,  172. 

the  cause  of  notion  is  not  based  on  the  ordinance  it  is  not  neces- 
sary to  plead  it.1  Thus,  in  actions  based  upon  negligence,  a 
municipal  ordinance  may  bo  introduced  as  bearing  upon  that 
question,  though  not  specifically  pleaded.2  In  an  action  under 
section  2SC43  to  recover  the  statutory  penalty  of  $5,000  for  the 
death  of  a  person  which  was  alleged  to  have  been  caused  by  the 
negligence  of  a  street-car  driver,  the  recital  in  the  petition  of  a 
city  ordinance  regulating  the  running  of  street  cars,  and  pre- 
scribing the  duties  of  those  in  charge  of  them,  together  with  an 
averment  that  the  death  was  caused  by  a  failure  to  observe  this 
ordinance,  is  not  the  statement  of  a  separate  cause  of  action 
founded  upon  the  violation  of  the  ordinance,  but  the  pleading  of 
such  violation  as  affording  evidence  of  the  driver's  negligence, 
the  consequence  of  which  is  fixed  by  the  statute.4 

§  171.  Mode  of  pleading  ordinance.—  A  municipal  ordinance 
cannot  be  pleaded  by  its  title  or  the  date  of  its  passage,  but  must 
be  set  out  in  full.5  It  is  only  necessary,  however,  to  set  out  the 
substance  and  effect  of  the  ordinance.6  It  is  generally  sufficient 
to  give  its  purport,  and  to  state  that  it  was  duly  passed  by  an 
authorized  body,  without  setting  it  out  in  full  or  reciting  in  de- 
tail the  steps  preliminary  to  its  passage,7  unless  such  steps  con- 
stitute the  jurisdictional  facts  in  proceedings  where  the  jurisdic- 
tion of  the  court  is  special  and  limited.8  It  must  be  borne  in 
mind,  however,  that  municipal  ordinances  must  be  pleaded  with 
certainty  of  description  as  to  their  subject-matter  and  effect.9 

§  172.  In  alleging  that  a  city  ordinance  was  duly  passed,  it  is 
necessarily  implied  that  all  essential  antecedent  acts  requisite  to 
its  legal  enactment  were  done.10  If  the  action  is  based  solely  on 
the  failure  to  meet  the  requirements  of  certain  ordinances  of  an 
incorporated  city,  and  there  is  an  omission  of  any  averment  as 

1  Robertson  v.  Wabash,  St.  L.  &  Pac.  5  St.  Louis  v.  Stoddard,  15  A  pp.  173; 
R.  Co.,  84  Mo.  119;  Senn  v.  Southern  Kansas  City  v.  Johnson,  78  Mo.  665; 
R.  Co.,  135  Mo.  512;  Banchor  v.  Greg-  Apitz  v.  Missouri  Pac.  R.  Co.,  17  App. 
ory,  9  App.  102.  419;  Heman  v.  Payne,  27  App.  481. 

2  Robertson  v.  "Wabash,  St.  L.  &  Pac.  b  Kansas  City  v.  Johnson,  78  Mo.  665; 
R.  Co.,  84  Mo.  119;  Judd  v.  Wabash,  Heman  v.  Payne,  27  App.  481;  Mo- 
st. L.  &  Pac.  R.  Co.,  23  App.  56.  berly  v.  Hogan,  131  Mo.  19;  State  ex 

3  Rev.  Stat.  1899.  rel.  v.  Oddle,  42  Mo.  210. 

*  Senn  v.  Southern  R.  Co.,  135  Mo.        7  Heman  v.  Payne,  27  App.  481;  Ey- 

512.     But  it  is  otherwise  if  the  right  erman  v.  Payne,  28  App.  72. 
of  action  is  based  on  the  ordinance.        8  Heman  v.  Payne,  27  App.  481. 
Nutter  v.  Chic,  R  L  &  Pac.  R.  Co.,  22        9  Keane  v.  Klausman,  21  App.  485. 
App.  328.  w  Becker  v.  Washington,  94  Mo.  375. 


§  173.]  APPLICATION    OF    THE    RULES.  109 

to  the  charter  of  said  city,  the  action  cannot  be  maintained, 
unless  the  charter  is  made  a  public  act.1  If  an  action  against  a 
municipal  corporation  relates  to  an  act  which  can  be  lawfully 
done  only  under  an  ordinance,  an  averment  in  the  petition  that 
the  act  was  done  by  the  municipality  implies  that  it  was  done 
in  pursuance  of  an  ordinance.2  Thus,  where  a  city  charter  pro- 
vides that  no  street  grading  can  be  ordered  except  by  ordinance, 
and  all  courts  are  required  by  the  state  constitution  and  the  char- 
ter itself  to  take  judicial  notice  of  the  provisions  of  the  charter, 
if  the  petition  for  the  assessment  of  damages  and  benefits  for 
changing  the  grade  of  a  street  alleges  that  a  certain  ordinance 
defining  the  limits  within  which  private  property  had  been  or 
would  be  benefited  by  the  grading  of  the  street  had  been  duly 
enacted,  this  constitutes  an  inferential  averment  of  the  passage 
of  an  ordinance  for  the"  grading  of  the  street,  and,  though  de- 
fective if  specifically  and  timely  attacked,  is  good  on  a  motion 
in  arrest,  and  perhaps  as  against  a  general  demurrer.3  And  if 
the  action  is  against  the  city  for  negligently  changing  the  grade 
of  a  street,  an  allegation  that  the  city  raised  the  grade  is  equiva- 
lent to  an  allegation  that  it  was  raised  in  pursuance  of  an  ordi- 
nance.4 

§  173.  Pleading  powers  of  public  officers. —  The  powers  and 
duties  of  public  officers  need  not  be  pleaded  where  they  are  pre- 
scribed by  law.5  Where  the  charter  and  ordinance  of  a  city  au- 
thorize certain  officers  to  make  contracts  for  street  improve- 
ments, it  is  sufficient  in  an  action  on  a  special  tax-bill  if  the 
petition  contains  an  averment  that  the  contract  was  duly  awarded 
by  these  officers.6  Where,  in  an  action  for  damages  brought  by 
a  city  officer  against  the  mayor  for  wrongfully  and  maliciously 
removing  him  from  office,  the  petition  contains  an  averment  that 
by  the  city  charter  the  defendant  had  power  to  remove  from 
office  for  cause  any  person  holding  office  under  its  charter,  such 
an  allegation  is  not  a  statement  of  fact,  but  is  simply  the  aver- 
ment of  a  legal  conclusion.7  In  pleading  the  appointment  of  a 
guardian  by  the  probate  court,  the  facts  conferring  the  jurisdic- 
tion need  not  be  stated  more  fully  than  required  by  the  statute 
governing  suck  appointment;  and  no  objection  can  afterward 

i  Wisdom  v.  Wabash,  St.  L.  &  Pac.  8  State  ex  rel.  v.  Gates,  67  Mo.  139. 

R.  Co.,  19  App.  324.  See  §  175,  post,  for  rule  where  officer 

2  Stewart  v.  Clinton.  79  Mo.  603.  has  a  special  jurisdiction. 

3  St.  Louis  v.  Lang,  131  Mo.  412.  «  Culligan  v.  Studebaker,  67  Mo.  372. 

4  Werth  v.  Springfield,  78  Mo.  107.  blanker  v.  Faulhaber,  94  Mo.  430. 


110  WHAT   SHOULD    BE    STATED    IN    PLEADING.       [§§  174-1 YT. 

be  made,  where  it  is  admitted  on  the  trial  that  such  appoint- 
ment was  duly  made  prior  to  the  trial.1 

§  174.  Pleading  ratification. —  The  party  seeking  the  benefit 
of  a  ratification  must  plead  it.2  And  if  he  relies  on  the  ratifica- 
tion of  an  act  which  was  originally  unauthorized,  he  must  count 
on  the  subsequent  promise.8 

§  175.  Pleading  a  judgment. —  In  pleading  a  judgment  of  the 
circuit  court,  which  is  a  court  of  general  jurisdiction,  it  is  not 
necessary  to  allege  that  the  court  rendered  a  valid  judgment; 
an  allegation  that  a  judgment  was  rendered  is  sufficient.4  Sec- 
tion 631 5  provides  that,  in  pleading  a  judgment  or  other  deter- 
mination of  a  court  or  officer  of  special  jurisdiction,  it  shall  not 
be  necessary  to  state  the  facts  conferring  jurisdiction,  but  such 
judgment  or  determination  may  be  stated  to  have  been  duly 
given  or  made.6  And  this  provision  applies  to  the  pleading  of  a 
judgment  rendered  by  a  justice  of  the  peace.7 

§  176.  Pleading  duress. —  Under  sections  151  et  seq.,  ante,  it 
is  shown  that  it  is  not  sufficient  to  plead  fraud  or  illegality  in 
general  terms,  but  that  the  facts  constituting  the  fraud  or  the 
illegality  must  be  set  forth.  A  like  rule  applies  in  pleading  mal- 
ice, duress  and  similar  issues.  In  pleading  duress  per  minas,  an 
allegation  of  threats,  intimidation  and  overbearing  persistency 
of  the  party  is  not  sufficient ;  the  nature  of  the  threats  and  the 
fear  of  their  execution  must  be  alleged.8 

§  177.  Pleading  malice. —  Where  the  facts  alleged  are  such 
as  make  out  a  case  of  malice,  it  is  not  necessary  to  use  the  word 
"  malice  "  in  describing  the  offense.9  The  rule  applies  in  actions 
for  slander.10 

1  Collins  v.  Trotter,  81  Mo.  275.  6  Etz  v.  Wheeler,  23  App.  449. 

'-Webb  v.  Allington,  27  App.  559;        7Musick  v.  Kansas  City,  S.  &  M.  R. 

Ferneau  v.  Whitford,  39  App.  311.  Co.,  124  Mo.  544. 

3  Noble  v.  Blount,  77  Mo.  235.  SMurdock  v.  Lewis,  26  App.  234 

4  Wickersham  v.  Johnson,  51  Mo.  313.        9  Lyddon  v.  Dose,  81  App.  64. 

5  Rev.  Stat.  1899.  w  Linville  v.  Rhoades,  73  App.  217. 


CHAPTER  IX. 


CONSTRUCTION  OF  PLEADINGS. 


§  178.  The  statutory  rules  of  construc- 
tion. 

179.  Cases  under  the  statute. 

180.  Liberal  construction. 

181.  The  rule  of  liberal  construction 

applies  to  form  but  not  to 
substance. 

182.  Limit  of  the  rule. 

183.  The  rule  applies  to  answers. 

184.  Construing    pleading    most 

strongly  against  the  pleader. 

185.  How  far  this  rule  applies  under 

the  new  system. 

187.  Presumptions  in    regard  to 

pleading. 

188.  Admissions  by  pleading. 

189.  Admitting  allegation  of  value. 

190.  Illustrations  of  the  rule  as  to 

admissions  by  pleading. 
195.  Admission  by  confession  and 
avoidance. 


196.  Admission  where  there  are  suc- 

cessive answers. 

197.  Admission  by  one  of  several  de- 

fendants. 

198.  Where  the  averment  of  the  pe- 

tition is  uncertain. 

199.  Binding  representative  by  ad- 

mission. 

200.  Direct  admissions. 

204.  How  a  direct  admission  is  af- 

fected by  a  general  denial. 

205.  Indirect  admissions. 

206.  Negative  pregnant. 

207.  Illustrations  of  negative  preg- 

nant. 

208.  Illustrations  of  admissions  by 

pleading. 

212.  The  above  rules  apply  only  to 

pleadings. 

213.  Judgment  on  the  pleadings. 


§  178.  The  statutory  rules  of  construction.—  The  cardinal 
principles  which  must  govern  the  courts  in  the  construction  of 
pleadings  are  laid  down  in  three  sections  of  our  statute.  Sec- 
tion 591 l  provides  that  the  sufficiency  of  pleadings  is  to  be  de- 
termined by  the  practice  act.  Section  629  !  requires  that,  in  the 
construction  of  a  pleading  for  the  purpose  of  determining  its 
effect,  its  allegations  shall  be  liberally  construed,  with  a  view  to 
substantial  justice  between  the  parties.  Section  676 x  makes  it 
the  duty  of  the  courts  to  so  construe  the  provisions  of  law  relat- 
ing to  pleading,  and  to  so  adapt  the  practice  thereunder,  as  to 
discourage,  as  far  as  possible,  negligence  and  deceit,  to  prevent 
delay,  to  secure  parties  from  being  misled,  to  place  the  party  not 
in  fault  as  nearly  as  possible  in  the  same  condition  he  would  be 
in  if  no  mistake  had  been  made,  to  distinguish  between  form  and 


i  Rev.  Stat.  1899.    See,  in  this  connection,  post,  §§  184  et  seq. 


112  CONSTRUCTION   OF   TLEADINGS.  [§§  170,  ISO. 

substance,  and  to  afford  known,  fixed  and  certain  requisitions  in 
place  of  the  discretion  of  the  court  or  judge.  In  view  of  these 
express  statutory  commands  it  seems  unfortunate  that  the  courts, 
in  passing  upon  questions  of  form  in  pleading,  and  in  construing 
pleadings,  should  have  been  at  all  governed  by  the  analogies 
drawn  from  the  common  law.1 

§  179.  Cases  under  the  statute. —  The  rule  of  pleading  under 
the  Code  is  that,  by  taking  the  language  in  its  plain  and  ordi- 
nary meaning,  such  an  interpretation  should  be  given  to  it  as 
fairly  appears  to  have  been  intended  by  the  pleader.2  While  it 
may  appear  that  the  rules  of  pleading  are  technical  and  often 
strict,  yet  these  rules  do  not  rest  alone  on  the  arbitrary  will  of 
the  lawmaker,  but  are  founded  in  that  sense  of  justice  which 
recognizes  the  right  of  every  party  to  a  suit  to  require  of  his 
adversary  a  clear  and  unequivocal  statement  of  his  side  of  the 
case.  If  this  right  is  demanded  in  due  form  and  season,  it  must 
be  heeded  as  a  demand  of  justice,  and  it  is  no  answer  to  say  that 
the  demand  is  technical.  But,  on  the  other  hand,  justice  will  not 
allow  a  party  to  lie  in  wait  for  his  adversary,  to  take  his  chances 
on  a  verdict,  and  then,  if  it  be  against  him,  profit  by  the  strict 
technicality  of  the  science  of  pleading,  if  a  liberal  construction 
can  obviate  the  objection.3  Substance  and  not  form  is  regarded; 
and  the  pleading  must  be  construed  to  mean  what  fairly  appears 
to  have  been  intended  by  the  pleader.4  The  language  of  the 
pleading  must  be  construed  with  reference  to  the  time  and  place 
of  making  its  allegations.5  Where  the  petition  alleged  that  goods 
were  sold  and  delivered  between  March  1st  and  April  28th,  and 
such  averment  is  not  denied  in  the  answer,  a  fair  construction  is 
that  the  sales  and  deliveries  were  continuous,  commencing  on 
March  1st  and  ending  on  April  28th.9  If  the  statute  of  limita- 
tions is  set  up,  and  plaintiff  replies  that  the  facts  upon  which  his 
cause  of  action  is  based  were  not  discovered  by  him  until  within 
a  certain  time,  this  is  a  sufficient  averment  that  they  were  dis- 
covered within  that  time.7 

§  180,  Liberal  construction. —  The  statute  requires  that  plead- 
ings shall  be  liberally  construed  with  a  view  to  substantial  jus- 

iSee  Stillwell  v.  Hamm,  97  Mo.  579,  <Padley  v.  Catterlin,  64  App.  629; 

585.  Hood  v.  Nicholson,  137  Mo.  400. 

2  Hickory    County   v.    Fugate,   143  &  McMullen  v.  Missouri,  K.  &  T.  R 

Mo.  71.  Co.,  60  App.  231. 

3 Cobb  v.  Lindell  R.  Co.,  149  Mo.  135;  ecantwell  v.  Massman,  45  Mo.  103. 

Oglesby  v.  Mo.  Pac.  R.  Co.,  150  Mo.  137.  »  Bent  v.  Lewis,  15  App.  40. 


§  181.]  COXSTKUCTIOX    OF    PLEADINGS.  113 

tice  between  the  parties.1  And  a  pleading  is  to  be  taken  in  its 
plain  and  ordinary  meaning,  giving  such  an  interpretation  to  it 
as  fairly  appears  to  have  been  intended.2  Section  629 3  was  not 
intended  to  relax  the  rules  of  pleading  where  their  strict  enforce- 
ment is  fairly  demanded;  if  the  circumstances  surrounding  a 
case  are  such  that  a  liberal  construction  of  the  pleadings  is  neces- 
sary to  prevent  a  defeat  of  justice,  then  they  should  be  so  con- 
strued.4 Thus,  where  one  of  the  acts  charged  by  a  plaintiff  to 
be  negligent  is  not  such  negligence  as  defendant  is  liable  for 
under  the  law,  but  defendant  waits  until  after  verdict  before 
raising  his  objection,  the  objection  will  not  then  be  heard,  if  by 
a  liberal  construction  of  the  petition  it  is  found  sufficient  to  sus- 
tain the  verdict.5 

§  181.  The  rule  of  liberal  construction  applies  to  form  but 
notto  substance. —  The  provisions  of  section  629,6  as  also  of  sec- 
tion 601,6  providing  what  an  answer  shall  contain,  are  substan- 
tially identical  with  corresponding  sections  in  the  New  York 
Code  of  Procedure.  It  has  been  held  in  that  state  that  the  pro- 
vision in  relation  to  a  liberal  construction  of  the  pleadings  with 
a  view  to  substantial  justice  between  the  parties  extends  only  to 
matters  of  form,  and  does  not  apply  to  the  fundamental  require- 
ments of  a  good  pleading.  Chief  Justice  Ruger  says :  "  A  con- 
struction of  doubtful  or  uncertain  allegations  in  a  pleading  which 
enables  a  party  by  thus  pleading  to  throw  upon  his  adversary  the 
hazard  of  correctly  interpreting  their  meaning  is  no  more  allow- 
able now  than  formerly;  and  when  a  pleading  is  susceptible  of 
two  meanings,  that  shall  be  taken  which  is  most  unfavorable  to 
the  pleader." 7  Similar  views  abound  in  our  own  decisions.8  A 
case  decided  by  the  supreme  court  of  Wisconsin  furnishes  an  illus- 
tration of  the  rule.  In  an  action  upon  a  promissory  note,  the  pay- 
ment of  which  was  guaranteed  by  the  defendant,  the  allegation 
of  the  petition  was :  "  Yet  the  said  makers  of  said  note  nor  the 

iRev.  Stat.  1899,  sec.  629;  Loehr  v.  3  Rev.  Stat.  1899. 

Murphy,  45  App.  519;   Foster  v.  Mis-  <Cobb  v.  Lindell  R.  Co.,  149  Mo.  135. 

souriPac.  R  Co.,  115  Mo.  165;  Overton  5Oglesby  v.  Missouri  Pac.   R.  Co., 

v.  Overton,  131  Mo.  559;  Vogelgesang  150  Mo.  137.    The  reader  should  con- 

v.  St.  Louis,  139  Mo.  127;  Kash  v.  Cole-  suit  in  this  connection  chapter  XXXL 

man,  145  Mo.  645.  6  Rev.  Stat.  1899. 

^Warnick  v.   Baker,  42  App.   439;  'Clark  v.  Dillon,  97 N.  Y.  370. 

Mendenhall    v.    Leivy,  45    App.    20;  8  See,  among  others,  Sumner  v.  Rog- 

Bricker  v.  Stone,  47  App.  530;  Silcox  ers,  90  Mo.  324,  329;  Huston  v.  Tyler, 

v.  McKinney,  64  App.   330;   Law  v.  140  Mo.  252;  Hood  v.  Nicholson,  137  Mo. 

Crawford,  67  App.  150.  400;  Padley  v.  Catterlin,  64  App.  629. 
Mo.  Code  Pl.—  8 


Hi  CONSTRUCTION   OF   PLEADINGS.  [§§  lS2-18i. 

said  defendant  have  paid  the  same."  It  is  plain  that  this  is  an 
allegation  that  the  note  had  been  paid.  It  is  equally  plain  that 
the  pleader  has  been  guilty  of  a  grammatical  error,  and  that  what 
he  intended  to  say  was  that  neither  the  makers  nor  the  defend- 
ant had  paid  the  same.  It  was  accordingly  held  that  the  plead- 
ing should  be  construed  as  though  the  allegation  did  so  read.1 

§  18 v.  Limit  of  the  rule. —  While  our  courts  have  always 
given  a  liberal  construction  to  pleadings  under  the  Code,  they 
have  sternly  set  their  faces  against  the  attempt  to  sue  on  one 
cause  of  action  and  recover  on  another.2 

§  183.  The  rule  applies  to  answers. —  The  rule  applies  also 
in  the  case  of  an  answer.  Thus,  where  the  order  of  a  township 
board  for  the  opening  of  a  road  is  pleaded  as  a  justification  to  an 
action  of  trespass,  such  board,  as  it  existed  under  the  township 
organization  law,  being  a  tribunal  of  special  jurisdiction,  the 
pleader  must  aver  specially  the  facts  which  authorized  the  board 
to  make  the  order,  or  else  state  generally  that  the  order  was 
duly  made.3  The  latter  mode  of  averring  the  fact  would  not  be 
good  pleading  were  it  not  for  the  provision  of  section  634,4  that, 
in  pleading  a  judgment  or  other  determination  of  a  court  or  offi- 
cer of  special  jurisdiction,  it  shall  not  be  necessary  to  state  the 
facts  conferring  jurisdiction,  but  such  judgment  or  determina- 
tion may  be  stated  to  have  been  duly  given  or  made.  If  the 
allegation  is  controverted,  the  party  pleading  it  must  then  estab- 
lish the  facts  showing  the  jurisdiction,  just  as  would  have  been 
required  had  he  pleaded  such  facts  in  full. 

§  184.  Construing  pleading  most  strongly  against  pleader. 
"While  a  pleading  is  to  be  fairly  interpreted  when  attacked  by 
demurrer,  doubtful  and  ambiguous  expressions  will  be  taken 
most  strongly  against  the  pleader.5  Yet  after  the  verdict  the 
court  will  not  construe  the  petition  most  strictly  against  the 
pleader,  but  it  will  be  liberally  construed  with  a  view  to  substan- 
tial justice.6  The  general  rule  is,  where  the  pleading  is  silent  as 
to  some  fact  or  is  ambiguous,  it  must  be  taken  most  strongly 
against  the  pleader;  but  this  is  not  inconsistent  with  the  rule 
that  pleadings  must  be  fairly  construed  so  as  to  reach  the  real 
intention  of  the  pleader.7     Even  where  the  pleading  is  assailed 

1  Gunn  v.  Madigan,  28  Wis.  158.  5  Blanke  v.  St.  Louis-Sonora  Mining 

2  McCormick  v.  Interstate  Cons. Rap.     Co.,  35  App.  186. 

Trans.  Ry.  Co.,  154  Mo.  191.     See  also  6  Oglesby  v.  Missouri  Pac.  R.  Co.,  150 

cases  cited  in  note  8,  p.  113.  Mo.  137. 

a  Ro'oinson  v.  Jones,  71  Mo.  583.  7  Loehr  v.  Murphy,  45  App.  519. 

«  Rev.  Stat.  1S99. 


§  185.]  CONSTRUCTION   OF   PLEADINGS.  115 

on  demurrer  the  court  should  lean  toward  rather  than  against 
the  pleader,  in  obedience  to  the  modern  rule  of  giving  him  the 
benefit  of  every  reasonable  intendment  and  presumption.1  "While 
doubtful  allegations  are  to  be  taken  more  strongly  against  the 
pleader,  yet  a  pleading  is  not  to  receive  as  against  the  pleader  a 
harsh  or  stringent  interpretation.2  The  rule  will  not  authorize 
a  forced  or  unnatural  construction  to  be  placed  on  the  words 
used.3 

§  185.  How  far  this  rule  applies  under  the  new  system. — 
Under  the  Code  this  rule  obtains  only  in  a  modified  degree. 
Section  629 i  provides  that  in  the  construction  of  a  pleading  for 
the  purpose  of  determining  its  effect  its  allegations  shall  be  lib- 
erally construed  with  a  view  to  substantial  justice  between  the 
parties.  It  has  been  already  stated5  that,  in  construing  this  sec- 
tion, the  supreme  court  holds  that  the  language  of  the  pleading 
should  be  taken  in  its  plain  and  ordinary  meaning,  and  that  such 
an  interpretation  should  be  given  it  as  fairly  appears  to  have 
been  intended  by  the  pleader.6  Thus,  when  an  admission  is 
made  in  an  answer,  it  includes  the  dates  of  the  facts  as  alleged 
in  the  adverse  pleading.7  "What  is  meant  by  the  rule  is  that  no 
presumptions  are  to  be  indulged  in  favor  of  the  pleading.8  And 
it  is  not  the  design  of  the  Code  that  plaintiff  should  be  compelled 
to  carefully  sift  each  denial  of  the  answer,  and  to  carefully  com- 
pare it  with  each  paragraph  of  the  petition,  in  order  to  see  what 
is  admitted  and  what  is  denied.  Whether  the  denial  is  general 
or  special,  it  must  be  such  that  the  issue  is  not  left  to  surmise  or 
conjecture.  If  the  answer  is  so  indefinite  that  it  is  difficult  to 
determine  what  is  admitted  and  what  denied,  it  will  be  most 
strongly  construed  against  the  defendant,  and  plaintiff  is  not 
bound  to  file  a  motion  to  have  it  made  more  definite  and  cer- 
tain.9   It  has  been  said  by  the  court  of  appeals  that  the  alle- 

1  Hood  v.  Nicholson,  137  Mo.  400.  252.    In  most  of  the  code  states  it  is 

2  Noll  v.  Oberhellman,  20  App.  336.  held  that  it  is  the  intention  of  the 
'State  ex  rel.  v.  Horner,  10  App.  307.  section  (that  section  which  corre- 
4  Rev.  Stat.  1899.  sponds  to  section  629  of  the  Missouii 
8  In  §  180  et  seq.  statute)  to  practically  abrogate  the 

6  An  additional  citation  is  Stillwell  common-law  rule   of  interpretation, 
v.  Harnm,  97  Mo.  579.  and  to  substitute  for  it  the  principle 

7  Sumner  v.  Rogers,  90  Mo.  324.  of  a  liberal  and  equitable  construc- 

8  State  ex  reL  v.  Central  St.  L.  Ass'n,  tion.     It  would  be  foreign  to  the  pur- 
14  App.  597.  poses  of  this  work,  even  if  lack  of 

9  Snyder  v.  Free,  114  Mo.  360;  Miller  space  did  not  forbid,  to  cite  the  au- 
v.  Chicago  &  Alton  R  Co.,  62  App.  thorities  on  this  point  in  detail.     The 


110  CONSTRUCTION  OF  PLEADINGS.  [§  186. 

gations  of  a  pleading  are  to  be  taken  within  reasonable  limits 
most  strongly  against  the  pleader.1  This  was  a  case  where  de- 
fendant was  sued  as  one  of  two  joint  makers  of  a  note  which 
was  executed  at  Louisville,  Kentucky.  The  special  defense  set 
up  was  that  the  other  joint  maker  resided  in  Louisville,  and  that 
he  was  fully  discharged  from  liability  on  the  note  by  the  statute 
of  limitations  of  that  state.  The  answer,  however,  did  not  allege 
that  the  Kentucky  statute  was  one  which  operated  to  extinguish 
the  debt  itself,  and  not  merely  to  bar  the  remedy,  and  it  was 
held  that  it  must  be  assumed  that  the  Kentucky  statute  was 
similar  in  effect  to  the  Missouri  statute,  and  that  it  operated 
upon  the  remedy  merely,  thus  construing  the  pleading  most 
strongky  against  the  defendant.  A  similar  decision  by  the  su- 
preme court  is  that  of  Williams  v.  St.  Louis  da  S.  F.  li.  Co? 
That  was  a  case,  too,  where  the  statute  of  limitations  of  another 
state  was  pleaded,  but  there  it  was  alleged,  as  it  was  not  in  the 
preceding  case,  that  the  law  of  Kansas  not  only  bars  the  remedy 
but  extinguishes  the  right  of  action.  The  answer  also  set  out 
the  Kansas  statute  in  full,  and  alleged  that  defendant  had  agents 
in  the  state  of  Kansas  to  receive  service  as  required  by  the  law 
of  that  state,  and  pleaded  these  facts  as  a  bar  to  the  action.  Yet 
the  court  held  that,  even  if  it  were  conceded  that  the  statute  of 
Kansas  operated  to  extinguish  the  right  and  not  simply  to  affect 
the  remedy,  the  defendant's  answer  was  defective,  because  it  did 
not  contain  the  averment  that  plaintiff  and  defendant  were  both 
residents  of  the  state  of  Kansas  during  all  the  time  limited  after 
the  cause  of  action  accrued. 

§  186.  In  Hood  v.  Nicholson*  which  is  one  of  the  latest  cases 
in  which  this  question  is  discussed,  it  is  said  that  in  considering 
pleadings  the  court  should  lean  toward  rather  than  against  the 
pleader,  in  obedience  to  the  modern  rule  of  giving  to  him  the 
benefit  of  every  reasonable  intendment  and  presumption  where 
the  pleading  is  assailed  on  demurrer.  And  there  is  an  earlier  case, 
in  which  the  action  was  upon  an  instrument  whereby  defend- 
ants obligated  themselves  to  pay  to  bearer  twenty  thousand  feet 

doctrine  will  be  found  in  Olcott  v.  the  pleader.  Morse  v.  Gilman,  16  Wis. 

Carroll.  39  N.  Y.  436;  Clay  v.  Edger-  504;   Gunn  v.  Madigan,  28  Wis.  158. 

ton,   19  Ohio  St.  549;    McGlasson   v.  See  also  the  Missouri  cases  cited  in 

Bradford,  7  Bush  (Ky.),  250;  Shank  v.  §  186. 

Teeple.  33  Iowa,  189.    The  Wisconsin        l  Lyman  v.  Campbell,  34  App.  213. 

court  has  gone  even  further,  holding        2 123  Mo.  573. 

that  the  presumption  is  in  favor  of        3 137  Mo.  400. 


§§  187,  188.]  COKSTKUCTION    OF    PLEADINGS.  117 

of  salable  lumber.  There  was  an  averment  that  plaintiff  had 
often  demanded  the  lumber  of  defendants,  and  that  it  failed  and 
refused  to  pay  it.  In  deciding  the  demurrer  the  court,  speaking 
through  Sherwood,  J.,  says:  "We  must  assume  on  the  face  of 
the  pleadings  that  the  demand  made  for  the  delivery  of  the 
lumber  was  such  a  demand  as  the  law  will  sanction."1  A  de- 
cision of  the  court  of  appeals  is  an  illustration  of  the  opposite 
tendency.  It  is  a  case  where  plaintiff  brought  an  action  based 
upon  his  exclusion  from  the  public  schools.  He  stated  in  his  peti- 
tion that  his  age  was  over  six  years  and  under  twenty-one  years. 
As  the  constitution2  provides  that  the  school  age  is  between  six 
and  twenty  years,  it  was  held  that  the  petition  failed  to  state  a 
cause  of  action;  for  non  constat  that  he  was  over  twenty  years 
and  yet  under  twenty-one  years  of  age.3 

§187.  Presumptions  in  regard  to  pleading. —  If  a  petition 
declares  upon  a  contract  without  stating  whether  it  is  in  writing 
or  not  it  will  be  presumed  that  it  is  in  writing.4  The  rule  that 
a  condition  of  things  once  shown  to  exist  will  be  presumed  to 
continue  until  the  contrary  appears,  though  generally  stated  as  a 
rule  of  evidence,  yet  applies  also  to  pleading.5  Where  in  an  ac- 
tion upon  an  insurance  policy  the  answer  sets  up  as  a  defense 
that  the  company  elected  to  repair,  and  so  notified  the  plaintiff, 
the  clear  implication  is  that  plaintiff  had  performed  the  condi- 
tions precedent  as  to  furnishing  proofs  of  loss.6 

§  188.  Admissions  by  pleading. —  Every  material  allegation 
of  the  petition  which  is  not  controverted  by  the  answer,  and 
every  material  allegation  of  new  matter  in  the  answer  which  is 
not  controverted  by  the  reply,  is  for  the  purpose  of  the  action  to 
be  taken  as  true;  but  the  allegation  of  new  matter  in  the  reply 
is  deemed  controverted  by  the  adverse  party  as  upon  a  direct 
denial  or  avoidance.7  The  date  of  an  account  sued  on  is  not  a 
material  fact  which  must  be  set  forth  in  the  petition.8  But  the 
date  of  a  note  must  be  stated.9  Where  the  answer  consists  of  a 
general  denial  except  that  which  may  be  hereinafter  expressly 
admitted,  and  in  a  subsequent  clause  defendant  "admits  the  in- 
debtedness," this  is  an  admission  of  the  debt  and  its  date  as 

1  Spears  v.  Bond,  79  Mo.  467.  6  Rieger  v.  Mechanics'  Ins.  Co.,  69 

2  Art.  XI,  §  1.  App.  674.     See  also  §  186,  n.  1,  p.  117. 

3  Rogers  v.  McCraw,  61  App.  407.  7  Rev.  Stat.  1899,  sec.  628. 

*  Sharkey  v.  McDermott,  91  Mo.  467;        8  Sutter  v.  Streit,  21  App.  157. 
Van  Idour  v.  Nelson,  60  App.  523.  9  Grant  v.  Winn,  7  Mo.  188. 

5  Stone  v.  Wendover,  2  App.  247. 


US  CONSTRUCTION   OF   PLEADINGS.  [§§  189-192. 

charged  in  the  petition.1     The  party  is  not  bound  to  produce 
any  evidence  on  the  point  which  is  not  controverted.2 

§  1$\).  Admitting  allegation  of  value. —  In  an  action  against 
a  carrier  for  failure  to  deliver  certain  malt  shipped  by  plaintiff, 
the  petition  stated  the  value  of  the  malt,  which  allegation  was 
not  denied  in  the  answer.  The  trial  court  told  the  jury  that  the 
value  of  the  malt  was  admitted.  But  the  supreme  court  held 
that  this  was  erroneous,  as  the  value  of  the  article  shipped  was 
an  immaterial  averment.3  And  the  same  rule  was  announced  in 
a  later  case,  which  was  an  action  for  a  conversion,  the  court  say- 
ing, while  citing  with  approval  the  preceding  case,  "  these  alle- 
gations of  value  are  not  what  are  termed  traversable,  so  as  to 
conclude  the  opposite  party  if  not  answered." 4 

§  190.  Illustrations  of  the  rule  as  to  admissions  by  plead- 
ing.—  Where  the  petition  charges  that  defendant  owes  plaint- 
iff for  goods  sold  and  delivered,  an  answer  which  merely  denies 
the  indebtedness  impliedly  admits  the  sale  and  delivery.5  In  an 
action  on  one  of  several  policies  of  insurance  on  a  steamboat,  the 
averment  that  the  boat  was  worth  more  than  all  the  insurance 
thereon  is  a  material  allegation,  which  stands  admitted  if  it  is 
not  denied.6  If  in  an  action  on  a  policy  of  insurance  the  petition 
does  not  allege  that  plaintiff  had  an  insurable  interest  in  the 
property,  the  fact  that  the  answer  does  not  aver  that  plaintiff 
had  no  insurable  interest  does  not  constitute  an  admission  of 
that  fact.7 

§  191.  If  in  a  suit  for  an  accounting  defendant  pleads  a  full 
and  complete  settlement,  he  will  not  be  permitted  to  introduce 
evidence  going  behind  such  alleged  settlement  to  establish  a  fact 
embraced  in  it.8  In  an  action  to  rescind  a  contract  on  the  ground 
of  fraud,  if  the  answer  does  not  distinctly  deny  the  charge  of 
fraud  and  notice  thereof,  such  charge  will  be  taken  as  confessed.9 

§  192.  In  an  action  on  a  contract  the  answer  contained,  first, 
a  denial  under  oath  of  the  execution  of  the  writing,  and,  secondly y 
alleged  that  the  contract  was  not  performed  as  therein  provided. 

1  Snyder  v.  Free,  114  Mo.  3G0.  6  Marshall  v.  Thames  Fire  Ins.  Co., 

-'  Moore  v.  Sanborin,42  Mo.  490;  State  43  Mo.  586. 

ex  rel.  v.  Maloney,  113  Mo.  367.  "'  Clevinger  v.  Northwestern  Ins.  Co.. 

3  Wood  v.  Steamboat  Fleetwood,  19  71  App.  73. 

Mo.  529.  8  ingiig  v.  Floyd,  33  App.  565. 

*  Field  v.  Barr,  27  Mo.  416.  9  Boles  v.  Bennington,  136  Mo.  522. 

&  Lee  v.  Casey,  39  Mo.  383.    See  also 
§  188,  n.  1,  p.  118. 


§§  193-198.]  CONSTErCTION    OF   PLEADINGS.  119 

These  defenses  are  not  so  inconsistent  that  they  cannot  stand 
together,  and  hence  the  answer  taken  as  a  whole  does  not  con- 
stitute an  admission  of  the  execution  of  the  instrument.1 

§  193.  If  a  town  commences  proceedings  to  condemn  land  be- 
longing to  a  party  it  thereby  admits  the  title  to  be  in  such  party, 
and  will  not  be  allowed,  when  the  question  of  damages  is  in 
issue,  to  prove  that  it  belonged  to  some  one  else.2 

§  194.  If  in  a'replevin  suit  the  answer  admits  that  the  replevied 
goods  had  been  purchased  from  plaintiff  by  the  assignor  of  de- 
fendant, defendant  will  not  be  allowed  to  establish  the  contrary 
by  his  evidence.3 

§  195.  Admission  by  confession  and  avoidance. —  Where  a 
defendant  denies  and  at  the  same  time  confesses  and  avoids,  that 
part  of  the  answer  which  constitutes  the  confession  will  be  taken 
as  true,  if  defendant  fails  to  prove  the  matter  in  avoidance.4 

§  196.  Admission  where  tliere  are  successive  answers. — 
"Where  successive  answers  are  filed,  all  facts  stated  in  the  peti- 
tion which  are  not  denied  in  the  last  answer  stand  admitted.' 

§  197.  Admission  by  one  of  several  defendants. —  Where 
there  are  several  defendants,  the  fact  that  the  new  matter  in  the 
answer  of  one  of  them  is  not  put  in  issue  by  a  reply  will  not 
render  such  answer  admissible  in  evidence  in  favor  of  another 
defendant,  the  allegations  of  whose  answer  have  been  denied  by 
the  reply.  The  facts  controverted  are  to  be  taken  as  true  in 
favor  of  the  party  pleading  them,  but  not  as  a  matter  to  be  sub- 
mitted to  and  found  by  the  jury.6 

§  198.  Where  the  averment  of  the  petition  is  uncertain. — 
A  failure  to  deny  an  allegation  lacking  certainty  is  not  an  ad- 
mission of  such  allegation.7  And  where  the  answer  contains  an 
averment  that  the  plaintiff  knew  certain  facts,  this  does  not 
tender  an  issue  as  to  the  existence  of  such  facts ;  if,  in  his  reply, 
plaintiff  denies-  that  he  knew  of  the  existence  of  the  facts,  this  is 
not  by  implication  an  admission  that  the  facts  actually  existed.8 
In  a  case  arising  on  the  criminal  side  of  the  court,  the  question 
is  discussed  as  to  the  effect  of  a  failure  to  deny  vague  and  un- 
certain allegations  in  a  pleading.     Defendant  filed  a  plea  in  bar 

!Cox  v.  Bishop,  55  Mo.  135.    As  to       4  McCord  v.  Doniphan  Branch  R.  Co., 
inconsistencies  in  pleading,  see  §§  73,    21  App.  92. 
233,  284,  527-530,  549.  5  Rand  v.  Grubbs,  26  App.  591. 

2  Wright  v.  Butler,  64  Mo.  165.  6  Bartholow  v.  Campbell,  56  Mo.  117. 

s  Burnham  v.  Ellmore,  66  App.  617.        '  State  v.  Williams,  12  App.  415. 

8  Thomas  v.  Liebke,  13  App.  389. 


L20  CONSTRUCTION   OF   PLEADINGS.  [§§  109,  200. 

to  the  indictment  against  him,  in  which  he  attempted  to  set  up 
that  the  statute  under  which  he  was  prosecuted  was  not  enacted 
in  the  manner  and  form  required  by  the  constitution  and  law 
of  Missouri.  The  state  failed  to  traverse  the  plea,  and,  as  it  was 
sworn  to,  defendant's  counsel  insisted  that  the  facts  stated  in  it 
must  be  conclusively  taken  as  true.  But  the  court  of  appeals 
held  that,  as  all  of  the  allegations  but  one  were  of  a  general 
character,  and  such  as  might  by  reason  of  their  want  of  certainty 
have  been  stricken  out,  it  was  not  necessary  for  the  state  to 
traverse  them.  The  one  exception  reads  as  follows:  "and  from 
the  official  journals  of  the  senate  it  appears  that  the  bill  for  such 
alleged  statute  was  read  only  twice  in  such  senate  prior  to  the 
signing  thereof  by  its  officers."  But  the  court  held  that  even 
this  was  not  a  sufficiently  full  statement  to  put  the  state  to  the 
burden  of  traversing  it.1 

§  199.  Binding  representative  by  admission. —  The  legal 
representative  who  is  substituted  for  a  deceased  party  may  adopt 
the  pleadings  of  the  party  whom  he  represents,  but  is  not  bound 
to  do  so ;  and  if  he  declines  to  adopt  them,  he  is  not  bound  by 
any  admissions  contained  in  them.  And  there  is  nothing  in  sec- 
tion 760 2  which  makes  such  pleadings  binding  upon  the  repre- 
sentative.3 

§  200.  Direct  admissions. —  Where  the  answer  not  only  fails 
to  deny  certain  facts  alleged,  but  expressly  admits  them,  they  be- 
come indisputable  on  the  trial,  and  evidence  to  disprove  them 
will  not  be  admitted.4  And  if  defendant  in  one  part  of  his  an- 
swer admits  the  execution  of  the  instrument  sued  on,  such  ad- 
mission runs  through  the  whole  defense  and  all  parts  of  the 
answer,  including  a  counter-claim.5  In  an  action  on  a  contract 
for  doing  certain  work  the  plaintiff  alleged  that  for  the  work 
done  the  said  defendants  agreed  to  pay  $1,030.  The  answer  con- 
tained the  following  clause :  "  For  and  in  consideration  of  which 
these  defendants  promised  to  pay  plaintiff  the  sum  of  $1,030." 
In  a  subsequent  count  of  the  answer,  in  the  nature  of  a  counter- 
claim against  plaintiff  for  damages  for  defective  work,  defend- 
ants set  up  the  terms  of  the  written  contract,  wherein  it  was 

i  State  v.  Williams,  12  App.  415.   The  »  Scott  v.  Davis,  141  Mo.  2ia 

judgment  in  this  case  was  affirmed  4  Wright    v.    Butler,    64    Mo.    165; 

by  the  supreme  court  (77  Mo.  310),  but  Campbell  v.  St.  Louis,  L  M.  &  S.  R. 

no  notice  is  taken  in  that  court  of  the  Co.,  16  App.  553. 

above  point  6  Cox  v.  Volkert,  86  Mo.  505. 

2  Rev.  Stat.  1899. 


§§  201,  202.]      CONSTRUCTION  OF  PLEADINGS.  121 

stipulated  that  the  work  was  to  be  paid  for  in  notes ;  but  no  such 
allegation  was  made  in  the  answer  proper.  It  was  held  that  the 
answer  directly  admitted  that  the  consideration  for  the  work 
was  to  be  paid  in  money,  the  whole  tenor  and  effect  of  the  an- 
swer being  to  declare  wherein  plaintiff  had  failed  to  do  the  work 
in  the  manner  provided  in  the  contract.1 

§  201.  The  parties  will  be  held  strictly  bound  by  the  allega- 
tions in  their  pleadings.  Thus,  where,  in  an  action  for  killing 
stock  by  a  railroad  company,  plaintiff  alleges  that  the  stock  came 
upon  the  railroad  and  was  killed  at  a  point  where  the  railroad 
passed  through  inclosed  lands,  he  will  be  bound  by  this  allega- 
tion, there  being  nothing  in  the  evidence  to  controvert  such 
statement.2  And  if  defendant  in  his  answer  admits  that  he  is  in 
actual  possession  of  the  premises  for  which  ejectment  is  brought, 
and  claims  to  hold  the  same  for  value  and  without  notice,  he 
will  be  bound  by  such  admission  and  will  not  be  allowed  to  claim 
differently  on  the  trial  of  the  question  of  rents  and  profits.3  In 
an  action  of  ejectment  against  a  county  to  recover  land  taken 
for  a  public  road,  the  answer  set  up  the  proceedings  to  open  the 
road,  averred  their  validity,  and  alleged  that  the  road  had  been 
used  as  a  public  highway  continuously  since  the  time  of  such 
opening  until  the  date  of  the  answer.  These  allegations  consti- 
tute an  admission  of  possession  by  the  county,  and  no  proof  of 
such  possession  need  be  offered.4  If  the  petition  alleges  a  leas- 
ing for  a  term  of  years,  and  the  answer  admits  the  agreement 
as  alleged  in  the  petition  and  the  taking  possession  of  the  prem- 
ises, it  is  immaterial  whether  the  instrument  was  sealed  or  un- 
sealed.5 On  the  other  hand,  if  an  action  for  rent  is  founded  on 
a  written  instrument  which  is  on  its  face  a  mere  contract  for 
operating  a  railroad  and  not  a  lease,  an  admission  in  the  answer 
that  it  is  a  lease  is  not  conclusive  on  defendant,  where  such  ad- 
mission is  accompanied  by  a  profert  of  the  instrument  itself.6 

§  202.  Where  all  the  indorsements  on  a  note  have  not  been  set 
out  in  the  petition,  an  admission  of  the  material  allegations  is 
not  an  admission  that  there  have  been  no  holders  except  those 

i  Globe  Light  &  Heat  Co.  v.  Doud,  *  McCarty  v.  Clark  County,  101  Ma 
47  App.  439.  179. 

2  Geiser  v.  St  Louis,  I.  M.  &  S.  R.        »  De  Loge  v.  Hall,  31  Mo.  473. 

Co.,  61  App.  459.  « St.  Jos.  &  St.  Louis  R,  Co.  v.  St 

3  Pike  v.  Martindale,  91  Mo.  268.   As    Louis,  L  M.  &  S.  R.  Co.,  135  Mo.  173. 
to  inconsistent  allegations  in  plead- 
ings see  §g  73,  233,  284  and  527. 


L22  CONSTRUCTION    OF   PLEADINGS.  [§§  2U3-205. 

set  out.1    "When  an  admission  is  made  in  an  answer  it  includes  the 
dates  of  the  facts  as  alleged  in  the  petition.2 

§  203.  In  an  action  to  recover  the  value  of  a  furnace  placed  in 
defendant's  house,  the  petition  alleged  that  plaintiff  "did  connect 
the  said  furnace  together  with  a  smoke-pipe  and  cold-air  pipes 
all  complete,  and  did  furnish  all  the  materials  therefor,  in  ac- 
cordance with  said  contract,  and  in  accordance  with  the  direc- 
tions of  the  said  defendant."  The  answer  contained  the  admis- 
sion that  "  plaintiff  placed  in  the  house  in  question  a  number  70 
furnace,  and  built  the  same  in  brick,  and  made  the  hot-air  con- 
nections with  hot-air  pipes  then  in  said  house,  and  furnished  one 
extra  register  with  border  and  smoke-pipe  and  cold-air  pipe." 
It  was  held  that  the  answer  contained  no  admission  that  the  pipes 
were  of  the  quality  described  in  the  contract.3 

§  201.  How  a  direct  admission  is  aifected  by  a  general  de- 
nial.—  If  the  answer  is  to  be  construed  as  containing  an  admis- 
sion of  a  fact  alleged  in  the  petition,  defendant  cannot  get  rid  of 
such  admission  by  resorting  to  the  practice  of  winding  up  his 
answer  with  the  vague  statement  that  defendant  denies  all  alle- 
gations except  as  before  admitted.4 

§  205.  Indirect  admissions. —  If  the  answer  contains  a  gen- 
eral denial  there  can  be  no  implied  admission  of  any  facts  stated 
in  the  petition.5  But  an  argumentative  denial  is  indirectly  an 
admission,  since  it  raises  against  the  pleader  the  inference  that 
he  was  unable  to  deny  as  the  practice  act  requires.  Such  denial 
is  forbidden  by  two  rules  of  pleading:  first,  that  facts  must  be 
alleged  by  direct  averment;  second,  that  they  must  be  alleged 
with  definiteness,  so  that  nothing  is  left  to  inference.6  Where 
in  an  action  on  a  promissory  note  the  defendant  alleges  that  he 
did  not  execute  the  note  sued  on,  but  that  he  executed  one  like 
that  described  in  the  petition  but  with  certain  additions  thereto, 
the  execution  of  the  note  is  admitted.7  In  an  action  by  an  as- 
signee of  an  instrument,  where  the  plea  is  non  est  factum,  the 
fact  of  the  assignment  is  admitted.8  Where  the  pleadings  admit 
that  goods  were  levied  on  by  an  officer  under  an  execution  in 
favor  of  defendant,  and  were  released  and  tendered  to  plaintiff 

1  Kinealy  v.  Burd,  9  App.  359.  5  State  to  use  v.  Samuels,  28  App. 

2  Sumner  v.  Rogers,  90  Ma  324.  649. 

3Halpin  v.  Manny,  33  App.  38a  6Bredell  v.  Alexander,  8  App.  110. 

4Bredell  v.  Alexander,  8  App.  110-        7  Kinman  v.  Cannefax,  34  Mo.  147. 
See  next  succeeding  section.  SRagland    v.   Ragland,    5    Mo.   54; 

Davis  v.  Imboden,  10  Mo.  340. 


§  206.]  CONSTRUCTION   OF   PLEADINGS.  123 

and  by  him  refused,  this  is  an  implied  admission  that  the  goods 
were  taken  out  of  plaintiff's  possession,  and  he  is  only  required 
to  show  their  value.  And  it  is  immaterial  in  such  a  case  whether 
plaintiff's  possession  was  that  of  a  pledgee  or  mortgagee.1  And 
if,  in  an  action  of  trespass  de  bonis  asportatis,  defendant  alleges 
in  his  answer  that  "  after  the  execution  of  the  said  mortgage, 
etc.,"  this  must  be  regarded  as  an  explicit  admission  of  the  execu- 
tion of  a  mortgage  which  was  charged  in  the  petition  to  have 
been  executed  by  the  owner  of  the  land  to  plaintiff.1 

§  206.  Negative  pregnant. —  Many  of  the  cases  illustrating 
the  above  rule,  though  not  all  of  them,  come  within  the  doctrine 
of  negative  pregnant.  That  doctrine,  however,  is  not  applied  in 
its  strictness  in  Missouri,  since,  if  it  were,  a  pleading  open  to  that 
objection  would  be  held  worthless,  as  it  was  under  the  common 
law.  Its  application  in  this  state  goes  only  so  far  as  to  make 
those  allegations  which  are  not  distinctly  denied — which  are  in 
fact  embraced  in  the  pregnant  negative  —  stand  admitted.  This 
clearly  appears  from  the  decisions  cited  in  this  section  and  the  one 
following.2  In  an  action  upon  an  insurance  policy  it  was  charged 
in  the  petition  that  the  building  was  burned  on  November  2Sth, 
and  the  answer  denied  the  destruction  of  the  property  "  as  al- 
leged." The  effect  of  this  answer  is  to  admit  the  destruction  of  the 
house  by  fire,  since  it  is  tantamount  to  saying  that  the  house  was 
destroyed  by  fire,  but  not  on  the  day  nor  in  the  way  you  say  it 
was.  The  answer  further  stated  that "  defendant  avers  that  before 
said  building  was  burned  as  alleged,"  and  further  "  that  at  and 
immediately  before  the  time  when  said  building  was  burned  me- 
chanics were  at  work."  These  averments  constitute  an  admission 
of  the  destruction  of  the  building  as  charged  in  the  petition.3  In 
the  same  case  the  petition  charged  that  the  policy  was  assigned 
on  October  15th  by  the  assured  to  the  plaintiff,  and  that  said  as- 
signment was  approved  in  writing  by  the  regular  agent  of  the 
defendant  at  Springfield,  Mo.  The  answer  contained  the  follow- 
ing sentence:  "  Defendant  denies  that  it  ever  consented  to  said 
pretended  assignment  of  said  policy,  and  that  the  act  of  its  agents 
at  Springfield  in  consenting  thereto  was  made  without  any  au- 
thority conferred  on  them  by  this  defendant."  This  is  clearly  an 
admission  by  defendant  that  the  agents  named  were  its  regular 
agents,  that  they  did  consent  in  writing,  and  that  their  signatures 

1  Howell  v.  Caryl,  50  App.  440.  chapter  on  The  Denial.  See  §§  543-5 15, 

2  This  subject  is  also  discussed,  and    post. 

additional  decisions  are  cited,  in  the        3  Breckinridge  v.  American  Central 

Ins.  Co.,  87  Mo.  62. 


124  CONSTRUCTION    OF   PLEADINGS.  [§  207. 

evidencing  such  consent  were  genuine.  The  only  fact  put  in  issue 
is  the  authority  of  those  agents  in  the  paricuular  instance.1  If 
the  answer  to  an  action  upon  a  policy  of  insurance  sets  upas  a 
defense  that  defendant  elected  to  repair,  and  so  notified  the 
plaintiff,  the  clear  implication  from  this  averment  is  that  plaintiff 
performed  the  conditions  precedent  as  to  furnishing  proofs  of 
loss.2 

§  207.  Illustrations  of  negative  pregnant. —  In  a  suit  for  fore- 
closure of  a  mortgage  which  the  petition  alleged  to  have  been 
assigned  to  plaintiff,  the  answer  contained  the  following  sen- 
tence: "Defendants  deny  that  said  mortgage  was  ever  assigned 
to  plaintiff  further  than  would  accrue  in  equity  from  an  assign- 
ment of  said  notes,  if  they  were  ever  assigned."  There  was  also 
an  averment  that  defendants  had  no  knowledge  or  information 
sufficient  to  form  a  belief  as  to  whether  the  assignment  or  in- 
dorsement was  made  on  the  notes  by  one  having  authority. 
Under  these  denials  it  was  held  that  the  assignment  was  ad- 
mitted.3 In  an  action  on  a  note,  where  the  petition  alleged  that 
the  payee  sold  and  transferred  by  delivery  said  note  to  plaint- 
iff for  a  valuable  consideration  to  the  said  payee  in  hand  paid 
by  plaintiff,  and  the  answer  denies  that  said  payee  sold  and  trans- 
ferred by  delivery  said  note  for  a  valuable  consideration  to  the 
said  payee  in  hand  paid  by  the  plaintiff  as  stated  in  the  petition, 
the  answer  does  not  deny  title  to  the  note,  but  only  the  manner 
of  acquiring  it.4  "Where  the  petition  charged  a  trespass  de  bonis 
asportatis,  and  the  answer  denied  plaintiff's  ownership  of  the 
property,  and  also  denied  that  defendant  wrongfully  entered 
upon  the  premises  and  took  the  property,  the  entering  and  tak- 
ing are  admitted.5  If  the  petition  alleges  that  notice  had  been 
given  as  required  by  law,  and  the  answer  takes  issue  on  the 
sufficiency  of  the  notice  generally,  as  by  denying  that  it  was 
served  as  required  by  law,  the  lawfulness  or  sufficiency  of  the 
notice  is  alone  put  in  issue,  and  the  fact  that  a  notice  was  given, 
and  that  it  was  given  at  the  time  alleged,  is  admitted.6  An  an- 
swer in  ejectment  which  denies  the  unlawful  entry  of  defend- 
ants, and  that  they  unlawfully  withhold  possession,  admits  the 
possession.7     So,  where  the  petition  contains  an  allegation  to  the 

1  Breckinridge  v.  American  Central        4  Wilson  v.  Murphy,  45  Mo.  409. 
Ins.  Co.,  87  Mo.  62.  »  Emory  v.  Phillips,  22  Mo.  499. 

2Rieger  v.  Mechanics'  Ins.  Co.,  69        6Soeding  v.    Bartlett,  35    Mo.   90; 

App.  674.  Gorman  v.  Dierkes,  37  Mo.  576. 

:;  Byington  v.   Hogan,   58  Mo.   509.        7  Tomlinson  v.  Lynch,  32  Mo.  160. 
See  also  §  206,  n.  3,  p.  123. 


§§  20S-210.]  CONSTRUCTION   OF   PLEADINGS.  125 

effect  that  plaintiff  is  entitled  to  the  possession  of  land  or  of  some 
specified  part  of  it,  and  that  defendant  withholds  the  possession 
of  the  whole  or  such  specified  part  from  plaintiff,  and  the  an- 
swer admits  that  defendant  withholds  possession  from  plaintiff, 
but  denies  that  he  does  so  unlawfully,  the  only  reasonable  and 
fair  interpretation  of  such  an  averment  is  that  the  defendant 
holds  possession  of  the  lot,  or  of  the  particular  part  thereof  speci- 
fied in  the  petition.1 

§  208.  Illustrations  of  admissions  by  pleading. —  Where  the 
action  is  for  breach  of  a  contract  of  employment,  and  the  answer 
admits  the  employment,  but  avers  that  it  was  for  a  different 
compensation  from  that  alleged  in  the  petition,  no  question  can 
be  raised  as  to  the  authority  of  the  agent  who  in  behalf  of  de- 
fendant made  the  contract  with  the  plaintiff.2  In  an  action  to 
recover  damages  received  by  plaintiff  in  a  coal  mine,  the  peti- 
tion, in  order  to  meet  the  defense  of  contributory  negligence, 
contained  an  allegation  that  plaintiff  was  rendered  unconscious 
as  the  result  of  defendant's  negligence,  but  he  introduced  no  evi- 
dence to  support  this  allegation  of  the  petition,  and  it  was  held 
that  his  contributory  negligence  was  thereby  admitted.3  "Where 
the  answer  alleges  that,  since  the  making  of  the  note  sued  on, 
certain  payments  had  been  made  on  it,  the  execution  of  the  note 
is  admitted.4 

§  209.  If,  in  an  action  on  a  policy  issued  by  a  mutual  fire  in- 
surance company,  the  answer  contains  no  direct  admission  of  the 
issuance  of  the  policy  as  charged  in  the  petition,  but  its  issuance 
and  acceptance  as  a  live  policy  are  not  denied,  and  it  is  specific- 
ally admitted  that  plaintiff  was  a  member  of  the  company  and 
held  a  certificate  of  membership,  this  is  tantamount  to  an  admis- 
sion that  the  policy  was  issued  to  him.5  If,  in  an  action  on  an 
insurance  policy,  the  petition  does  not  allege  that  plaintiff  had 
an  insurable  interest  in  the  property,  the  mere  omission  of  the 
answer  to  deny  that  fact  does  not  amount  to  an  admission  of  it.6 

§  210.  In  an  action  against  a  railroad  company  for  wrongfully 
appropriating  plaintiff's  land,  the  petition  alleged  that  defendant 
appropriated  a  strip  of  land  one  hundred  feet  wide.  The  answer 
averred  that  defendant  was  in  the  lawful  possession  of  the  prem- 

i  Jordan  v.  Surghlor,  107  Mo.  520.  4  Wisdom  v.  Shanklin,  74  App.  428. 

2  Cross  v.  Atchison,  T.  &  S.  F.  R.  Co.,  s  Spencer  v.  Farmers'  Ins.  Co.,  79 
71  App.  585.  App.  21:5. 

3  Lenk  v.  Kansas  &  Texas  Coal  Co.,  G  Clevinger  v.  Northwestern  Nat. 
80  App.  374.  Ins.  Co.,  71  App.  73. 


120  CONSTRUCTION    OF   PLEADINGS.  [§§  211-213. 

ises  described  in  the  petition.  It  was  held  that  these  averments 
taken  together  are  susceptible  of  no  other  meaning  than  that  de- 
fendant took  possession  of  a  strip  of  land  one  hundred  feet  in 
width  where  its  railroad  is  located  over  plaintiff's  lots,  and  that 
it  was  in  possession  of  such  land  at  the  time  the  action  was  com- 
menced, and  therefore  evidence  to  establish  the  width  of  the 
strip  was  unnecessary.1 

§  211.  The  petition  in  a  partition  suit  alleged  that  plaintiffs 
were  the  owners  of  the  land  subject  to  the  widow's  unassigned 
dower,  and  that  her  dower  interest  had  been  conveyed  to  H.,  one 
of  the  defendants.  H.  in  his  answer  averred  that  the  widow  had 
both  a  dower  and  homestead  interest,  and  that  he  had  acquired 
both;  also  that  the  administrator  had  sold  the  land  and  H.  had 
become  the  purchaser,  which  sale  had  been  approved  by  the  court. 
The  reply  was  a  general  denial  of  the  answer  "  so  far  as  the  same 
controverts  the  allegations  stated  in  the  petition."  By  this  reply 
the  alleged  sale  by  the  administrator,  the  purchase  of  the  land  by 
H.  and  the  approval  thereof  were  not  admitted.  All  the  aver- 
ments of  the  answer,  except  that  as  to  dower,  controverted  the 
averments  of  the  petition  and  were  put  in  issue  by  the  reply.2 
"Where  an  action  was  brought  on  an  agreement  by  the  defendant 
to  pay  taxes  on  certain  premises  leased  to  him,  and  he  pleaded  in 
defense,  first,  a  release,  and  second,  that  he  had  in  fact  paid  the 
taxes,  both  grounds  of  defense  admit  the  assessment  and  legality 
of  the  taxes.3 

§  212.  The  above  rules  apply  only  to  pleadings. —  The  rules 
as  to  admissions  apply  only  to  pleadings  strictly  so  called.  A 
written  motion  for  an  order  on  the  sheriff  to  pay  over  to  plaint- 
iff funds  in  the  hands  of  the  sheriff  is  not  a  pleading,  but  is  in  the 
nature  of  a  suggestion  to  the  court,  and  the  averments  contained 
therein  are  not  admitted  because  the  sheriff  does  not  deny  them 
in  his  return  to  the  order.4 

§  213.  Judgment  on  the  pleadings. —  If  the  answer  sets  up  a 
completed  accord  and  satisfaction,  a  judgment  on  the  pleadings 
is  improper,  because  such  accord  and  satisfaction  is  binding  upon 
both  parties,  and  bars  them  both.5  This  subject,  however,  belongs 
more  properly  in  a  work  on  Practice. 

1  Ragan  v.  Kansas  City  &  S.  E.  R.  the  answer  are  held  to  contain  an  ad- 
Co.,  144  Mo.  623.  mission  of  a  certain  essential  fact,  and 

2Colvin  v.  Hauenstein,  110  Mo.  575.  to  warrant  an  instruction  based  upon 

3  Blumenthal  v.  Mugge,  43  Mo.  427.  such  admission. 

The  case  of  Sprague  v.  Sea,  152  Mo.  4  Adler  v.  Lang,  26  App.  226. 

327,  is  one  in  which  the  allegations  of  5Dalrymple  v.  Craig,  70  App.  149. 


CHAPTER  X. 


JOINING  CAUSES  OF  ACTION. 


§  214.  "When  there  is  but  one  cause 
of  action. 

215.  But  one  cause  of  action  — 
Further  illustrations. 

217.  Further  illustrations  —  Ac- 
tions on  contract. 

219.  Further    illustrations  —  Ac- 

tions on  bonds. 

220.  Further    illustrations  —  Ac- 

tions for  slander. 

221.  Several  causes  of  action. 

222.  Section  593  construed. 

223.  Cases  decided  under  the  above 

section. 

227.  The  rule  in  justices'  courts. 

228.  Party  suing  or  being  sued  in 

more  than  one  capacity. 


229.  Joining    legal    and    equitable 

causes. 

230.  The  different  causes  of  action 

must  be  separately  stated. 

231.  Same  —  Legal    and    equitable 

causes. 

232.  Causes  of  action  must  be  sep- 

arately stated  —  Instances. 

233.  The  different  counts  must  be 

consistent. 

234.  Each  count  must  be  complete 

in  itself. 

236.  The     same    cause    of    action 

stated  in  several  counts. 

237.  This    practice    not    uniformly 

approved. 


§  214.  When  there  is  but  one  canse  of  action. —  The  vari- 
ous forms  or  subjects  of  injury  sustained  from,  a  single  wrong- 
ful act  do  not  multiply  the  causes  of  action.  Thus,  in  an  action 
against  a  municipality  for  damages  caused  to  property  by  a 
change  in  the  grade  of  a  street,  where  the  plaintiff  owns  the  fee 
of  one  lot  and  a  leasehold  of  the  adjoining  lot,  he  may  sue  in  one 
count  for  the  damage  to  both.1  In  an  action  by  a  discharged 
employee,  the  petition  is  not  bad  as  joining  two  causes  of  action 
in  one  count,  because  it  seeks  to  recover  for  services  rendered 
under  the  contract  of  employment,  and  also  damages  for  the 
wrongful  discharge.2  If  the  action  is  based  upon  a  failure  of  the 
employer  to  provide  the  proper  appliances  for  his  employee,  and 
the  petition  specifies  a  number  of  defects  in  the  machinery, 
which  were  not  inconsistent  with  each  other,  nor  repetitions  of 
the  same  defect,  but  set  forth  separate  and  cumulative  specifica- 
tions of  different  defects,  there  is  no  misjoinder.3    But  in  an  action 


iStickford  v.  St.  Louis,  7  App.  217; 
affirmed,  75  Mo.  309. 

2Estes  v.  Desnoyers  Shoe  Co.,  155 
Mo.  577.    See  Ehrlich  v.  ^tna  Life 


Ins.  Co.,  88  Mo.  249,   and  also  §§  217 
and  218,  post. 
3  Bartley  v.  Trorlicht,  49  App.  214. 


128  JOINING    CAUSES    OF    ACTION.  [§§  215,  21G. 

by  an  emplo}Tee  to  recover  against  his  employer  for  personal  in- 
juries, if  the  plaintiff  secies  to  recover  for  the  negligence  of  the 
company  itself,  or  its  vice-principal,  and  at  the  same  time  seeks 
to  charge  the  company  for  the  negligence  of  a  fellow-servant, 
as  contradistinguished  from  a  vice-principal,  he  must  set  out  each 
of  those  causes  of  action  in  a  separate  count;  he  cannot  blend 
the  two  in  one  count  and  try  the  cause  on  both  together.1 

§215.  But  one  cause  of  action  —  Further  illustrations. — 
Where  an  action  is  brought  for  damages  for  the  maintenance  of 
a  private  nuisance,  and  the  petition  contains  a  prayer  for  an  in- 
junction to  prevent  its  continuance,  this  is  but  a  single  cause  of 
action  for  which  double  relief  is  asked ;  and  it  is  erroneous  to  ignore 
the  allegation  of  damages,  and  to  treat  the  cause  simply  as  one 
for  an  injunction.2  Damages  by  repeated  acts  of  trespass  by  cat- 
tle, owing  to  the  failure  of  a  railroad  company  to  erect  and  main- 
tain a  fence,  may  be  sued  for  in  one  count.3  And  a  petition  which 
sets  forth  a  trespass  on  plaintiff's  premises,  with  a  further  allega- 
tion of  the  destruction  of  grass  thereon,  is  nothing  more  than  the 
setting  out  of  an  element  of  damage  flowing  from  the  trespass, 
and  states  but  one  cause  of  action.4  But  where  a  petition  alleges 
that  defendant,  by  its  diversion  of  a  water-course,  destroyed  plaint- 
iff's crops  during  several  years,  and  asks  a  gross  sum  for  the  dam- 
ages, the  petition  is  bad,  since  it  unites  several  causes  of  action 
in  one  count.5  Statements  of  injuries  to  the  person  and  of  injuries 
to  his  property,  resulting  from  the  same  wrongful  act,  are  not 
statements  of  different  causes  of  action.6  A  petition  in  trover 
which  alleges  that  a  steer  was  delivered  to  a  carrier  for  transpor- 
tation, that  the  carrier  negligently  suffered  him  to  escape,  and 
afterwards  found  him  and  converted  him  to  his  own  use,  states 
but  one  cause  of  action.7  And  the  statement  of  a  conversion, 
with  the  additional  averment  that  it  was  done  under  such  cir- 
cumstances as  afforded  grounds  for  exemplary  damages,  is  not 
a  statement  of  two  causes  of  action.8 

§  216.  The  statute  as  to  mortgages  provides  for  an  entry  of 
satisfaction  and  release  of  the  property  when  the  secured  debt  is 

iMcDermott  v.  Hannibal  &  St.  J.  6Bodeman  v.  Crawford,  2  App.  598; 

R  Co.,  87  Mo.  285.  Lamb  v.  St.  Louis,  C.  &  W.  R  Co.,  33 

2  Whipple  v.  Mclntyre,  69  App.  397.  App.  489. 

3  Ray  v.  St.  Louis,  L  M.  &  S.  R.  Co.,  7  Johnson  v.  Wabash,  St.  L  &  Pac. 
25  Aj>p.  104.  R  Co.,  22  App.  597. 

*  Cook  v.  Redman,  45  App.  397.  8  Peckham  v.  Lindell  Glass  Co.,  9 

sOffield  v.  Wabash,  St.  L  &  Pac.  R     App.  459. 
Co.,  22  App.  607. 


§§  217-219.]  JOINING    CAUSES   OF   ACTION.  129 

fully  paid,  and  further  provides  that  if  the  person  receiving  sat- 
isfaction does  not,  within  thirty  days  after  request  and  tender  of 
the  costs,  properly  acknowledge  satisfaction,  he  shall  forfeit  to  the 
party  aggrieved  ten  per  cent,  of  the  amount  of  the  mortgage  ab- 
solutely, and  any  other  damages  such  party  may  prove  he  has 
sustained.1  In  an  action  by  the  mortgagor  for  a  failure  to  make 
the  release  provided  for  in  this  section,  the  claim  for  the  penalty 
and  that  for  damages  should  be  set  out  in  separate  counts.2 

§  217.  Further  illustrations  —  Actions  on  contract. —  When 
a  contract  contains  several  stipulations,  a  petition  alleging 
breaches  of  the  different  stipulations  is  not  open  to  the  objection 
of  having  joined  two  causes  of  action  in  one  count.3  Several 
breaches  of  the  same  contract  make  only  one  cause  of  action,  and 
they  should  all  be  stated  in  the  same  count.4  Where  there  is  an 
agreement  to  pay  a  given  sum  of  money,  and  in  case  of  failure 
to  pay  the  same  on  maturity,  so  that  it  becomes  necessary  to  sue 
for  the  amount,  to  pay  a  reasonable  attorney's  fee  in  addition, 
there  is  but  one  contract  with  two  stipulations,  and  a  demurrer 
will  not  lie  because  the  petition  contains  but  one  count.  Had 
plaintiff  brought  his  action  on  one  stipulation,  omitting  the  other, 
he  might  have  barred  himself  from  a  subsequent  action  on  the 
remaining  stipulation.5  "When  the  petition  states  that  the  plaint- 
iff sold  to  defendant  a  lot  of  goods  at  a  fixed  price,  that  a  part 
were  delivered,  and  the  balance  were  not  delivered  because  de- 
fendant refused  to  receive  them,  it  states  but  one  cause  of  action.6 

§  218.  "Where  there  are  separate  and  distinct  contracts,  and 
there  is  a  clause  of  guaranty  in  each  which  is  a  distinct  contract 
of  guaranty,  an  action  upon  the  different  guaranties  in  which  the 
petition  contains  but  one  count  cannot  be  maintained.7  Where 
an  action  on  an  indenture  of  apprenticeship  sets  out  various 
breaches,  and  their  investigation  involves  separate  and  independ- 
ent inquiries,  they  are  independent  causes  of  action,  though  aris- 
ing out  of  the  same  contract.8 

§  219.  Further  illustrations  —  Actions  on  bonds. —  In  an  ac- 
tion  upon  an  official  bond  the  various  breaches  assigned  do  not 

>  Rev.  Stat.  1899,  sec.  4363.  4  Pryor  v.  Kansas  City,  153  Mo.  135. 

2  Scott  v.  Robards,  67  Mo.  289.  6  Comstock  v.  Davis,  51  Mo.  569. 

The  cases  which  will  be  found  in  6  Hollfield  v.  Black,  20  App.  328. 
sections  230-232,  post,  have  also  more  7  Watkins  v.  Pierce,  10  App.  595. 
or  less  bearing  on  this  point.  8Boyce  v.  Christy,  47  Mo.  70. 

'Rissler  v.  American  Central  Ins. 
Co.,  150  Mo.  366. 

Mo.  Code  Pu— 9 


130  JOINING    CAUSES    OF   ACTION.  [§  220. 

constitute  several  causes  of  action.1  And  if  the  first  cause  of  ac- 
tion alleged  is  that  a  right  has  accrued  for  the  penalty  of  the 
bond,  and  the  second  count  assigns  the  damages  specifically,  but 
there  is  only  one  prayer  for  judgment,  the  petition  contains  in 
fact  but  one  cause  of  action.2  Whore  the  breach  assigned  is  that 
the  county  auditor  converted  to  his  own  use  the  county  school 
fund,  and  there  is  a  further  averment  that  he  did  not  secure  to 
each  township  its  share  of  the  school  fund,  there  is  but  one  breach 
assigned  and  no  misjoinder.3  Even  though  the  plaintiff  in  an 
action  on  a  bond  sets  out  the  breaches  in  the  form  of  several 
counts,  the  petition  nevertheless  states  but  a  single  cause  of  ac- 
tion on  the  bond.4 

§220.  Further  illustrations  —  Actions  for  slander. —  Dis- 
tinct defamatory  statements  imputing  the  same  offense  to  the 
plaintiff,  but  couched  in  different  phraseology,  and  not  appear- 
ing to  have  been  spoken  in  the  presence  of  the  same  hearers, 
need  not  be  embraced  in  one  count,5  though  it  is  permissible  to 
do  so.6  And  it  seems  that  even  when  spoken  on  one  occasion 
and  in  the  presence  of  the  same  hearers  a  like  rule  would  obtain.5 
It  is  only  when  the  different  words  or  utterances  of  the  defend- 
ant are  such  as  would,  when  grouped  together,  constitute  but 
one  offense  that  the  same  slander  may  be  stated  several  times  in 
the  same  count;  if  the  different  utterances  charge  different  of- 
fenses, they  must  be  set  out  in  separate  counts.  And  while 
causes  of  action  for  words  imputing  to  plaintiff  the  crimes  of 
perjury,  larceny  and  adultery  may  be  united  in  the  same  peti- 
tion, they  must  be  separately  stated,  with  the  damages  sought 
for  each.7  It  has  been  held  by  the  supreme  court  in  a  later  case 
that  different  sets  of  words  spoken  on  different  occasions  may 
be  set  forth  in  one  count,  and  be  included  in  the  same  cause  of 
action  with  one  conclusion  and  one  prayer  for  damages.8  Where 
defendant  was  charged  with  saying  of  plaintiff,  "  she  is  a  com- 
mon whore,"  and  also  with  saying  "she  has  been  in  the  peni- 
tentiary here,"  the  slanders  are  separate  and  distinct,  and  should 
not  be  embraced  in  one  count.9 

i  State  to  use  v.  Davis,  35  Mo.  406.  1  Christal  v.  Craig,  80  Mo.  367.     See 

2  State  to  use  v.  Webster,  53  Mo.  135.  Casey  v.  Aubuchon,  25  App.  91. 

3  State  to  use  v.  Bonner,  5  App.  13.  8  Lewis    v.   McDaniel,  82    Mo.  577. 

4  Hickory  County  v.  Fugate,  143  Mo.  And  this  last  decision  is  in  line  with 
71.  Birch  v.  Benton,  26  Mo.  153,  and  Pen- 

5  Walter  v.  Hoeffner,  51  App.  46.  nington  v.  Meeks,  46  Mo.  217. 

e  Casey  v.  Aubuchon,  25  App.  91.  '■>  Michael  v.  Matheis,  77  App.  556. 


§§  221,  222.]  JOINING   CAUSES   OF  ACTION.  131 

§221.  Several  causes  of  action. —  A  plaintiff  may  unite  in 
the  same  petition  several  causes  of  action,  whether  they  are  legal 
or  equitable,  or  both,  where  they  all  arise  out  of,  first,  the  same 
transaction,  or  transactions  connected  with  the  same  subject  of 
action ;  second,  a  contract,  express  or  implied ;  third,  injuries  with 
or  without  force  to  person  and  property,  or  either ;  fourth,  in- 
juries to  character;  fifth,  claims  to  recover  real  property,  with 
or  without  damages  for  withholding  it,  and  the  rents  and  profits; 
sixth,  claims  to  recover  personal  property,  with  or  without  dam- 
ages for  the  withholding  of  it;  or,  seventh,  claims  by  or  against 
a  party  in  some  representative  or  fiduciary  capacity,  by  virtue 
of  a  contract  or  by  operation  of  law.  But  the  causes  of  action 
so  united  must  all  belong  to  one  of  the  above  classes,  and  must 
affect  all  the  parties  to  the  action,  and  must  not  require  different 
places  of  trial,  and  must  be  separately  stated,  with  the  relief 
sought  for  each  cause  of  action,  in  such  manner  that  they  may 
be  intelligibly  distinguished.1  Several  causes  of  action  for  in- 
juries to  person  or  property,  whether  direct  or  consequential, 
and  whether  damages  are  given  by  statute  or  by  common  law, 
and  whether  they  are  single  or  double,  may  under  the  above 
section  be  included  in  the  same  petition.2  Mandamus  cannot  be 
joined  with  other  actions.3 

§  222.  Section  503  construed. —  That  several  causes  of  action 
may  arise  out  of  the  same  transaction  is  thus  recognized  in  ex- 
press terms  by  the  statute.4  But  that  causes  of  action  may  be 
properly  joined,  the  several  causes  of  action  must  be  in  favor  of 
all  the  plaintiffs  and  against  all  the  defendants.5  So  it  is  held 
that  a  cause  of  action  founded  on  a  contract  cannot  be  united 
with  one  based  on  injury  to  property.6  At  the  term  of  the  court 
preceding  that  in  which  the  above  decision  was  rendered,  it  was 
held  that  two  such  causes  of  action  could  not  be  joined,  even 
though  they  both  grew  out  of  the  same  transaction.7  This  propo- 
sition was,  however,  modified  in  a  case  decided  during  the  next 
year,  it  being  then  held  that  a  petition  was  bad  which  contained 
two  counts,  one  sounding  in  damages  and  the  other  founded 
upon  matters  of  contract,  the  two  causes  of  action  not  arising 

!Eev.  Stat  1899,  sec.  593;  Callahan        3Barada  v.  Carondelet,  16  Mo.  323. 
v.  McMahan,  33  Mo.  Ill;  Mclloney  v.        *  Brown  v.  Chadwick,  32  App.  615. 
German  Ins.  Co.,  44  App.  426;  Morri-        ogtalcup  v.  Garner,  26  Mo.  72,  74, 

son  v.  Herrington,  120  Ma  605.  following  the  New  York  decisions. 

2  Clark  v.  Hannibal  &  St.  J.  R.  Co.,        «  Ederlin  v.  Judge,  36  Mo.  350. 
36  Mo.  202.  i  Jamison  v.  Copher,  35  Mo.  483. 


132  JOINING    CAUSES    OF   ACTION.  [§§  223,  224. 

out  of  the  same  transaction.1  I  think  the  tendency  now  is  to  a 
more  liberal  interpretation  of  the  statute  than  that  put  upon  it 
in  the  case  of  Jamison  v.  Copher.2  And  in  Spangler  v.  Kite*  the 
St.  Louis  court  of  appeals  holds  that  it  is  proper  to  unite  in  the 
same  petition,  in  different  counts,  a  cause  of  action  on  a  war- 
ranty in  the  sale  of  a  mare  and  a  cause  of  action  for  deceit  prac- 
ticed  in  the  same  sale.  In  a  case  where  the  petition  contained 
two  counts,  the  first  of  which  was  held  to  be  founded  upon  con- 
tract and  the  second  founded  upon  tort,  the  court  says  that  "  the 
plaintiff's  right  to  go  to  the  jury  upon  his  contract-demand  is 
not  to  be  denied  on  account  of  its  alleged  misjoinder  with  the 
ex  delicto  claim  in  the  second  count;  nor  is  his  right  prejudiced 
by  the  circumstance  that  both  court  and  counsel  treated  the  case 
throughout  the  trial  as  an  action  for  deceit." 4  The  court  also 
says  in  that  case :  "  That  a  party  improperly  unites  several  causes 
of  action  can  work  no  detriment  further  than  the  elimination  of 
some  of  them ;  and  not  even  that,  if  the  adverse  party  fails  to 
complain  at  the  proper  time.  This  is  equivalent  to  saying  that 
if  the  adversary  does  not  properly  object  there  is  no  misjoinder 
at  all." 5 

§  223.  Cases  decided  under  the  above  section. —  A  count  on 
a  promissory  note  may  be  joined  in  the  same  petition  with  a 
count  for  goods  sold  and  delivered.6  Plaintiff  sold  an  animal  to 
one  S.,  to  whom,  while  the  purchase-money  was  still  unpaid,  he 
shipped  him  by  the  defendant  express  company.  The  animal  hav- 
ing been  killed  while  in  the  custody  of  defendant,  plaintiff  brought 
an  action  for  his  value.  He  framed  his  petition  in  two  counts, 
in  one  of  which  he  alleged  himself  to  be  the  owner,  and  in  the 
other  he  claimed  as  assignee  of  the  right  of  action  of  S.  It  was 
held  that  a  demurrer  to  the  evidence  would  not  lie  on  the  ground 
of  a  misjoinder  of  causes  of  action.7 

§  224.  Plaintiff  may  unite  in  the  same  petition  two  counts  for 
the  same  injury  by  a  railroad  company,  one  under  section  1105 8 
for  double  damages,  and  the  other  under  section  2867 8  for  single 
damages,  and  he  is  entitled  to  go  to  the  jury  on  both,  and  will 
not  be  compelled  to  elect  on  which  cause  of  action  he  will  stand.9 

i  Hoagland  v.  Hannibal  &  St.  J.  R.  5  Sumner  v.  Tuck,  10  App.  269,  277. 

Co.,  39  Mo.  451.   As  to  what  is  a  "trans-  Consult  in  this  connection  ch.  XXXVL 

action,"  see  §  664,  post.  «  Howard  v.  Shirley,  75  App.  150. 

2  Jamison  v.  Copher,  35  Mo.  483.  7  Harris  v.  Pacific  Exp.  Co.,  67  App. 

3  47  App.  230.  175. 

4  Sumner  v.  Tuck,  10  App.  269, 279.  8  Rev.  stat  1899. 

9Straub  v.  Eddy,  47  App.  189. 


§§  225-228.]  JOINING    CAUSES   OF   ACTION.  133 

§  225.  Where  a  debtor  has  made  an  assignment  for  the  benefit 
of  creditors,  and  has  failed  to  include  in  it  a  certain  piece  of  land, 
which  he  afterwards  conveys  to  a  third  party,  a  suit  to  set  aside 
the  conveyance  of  such  land  on  the  ground  of  fraud  cannot  be 
joined  with  a  count  for  an  accounting  under  the  assignment.1 

§  226.  A  woman  cannot,  in  an  action  for  breach  of  promise  of 
marriage,  join  a  count  for  seduction.2  She  may  maintain  an  ac- 
tion for  seduction  accomplished  under  promise  of  marriage,  but 
in  such  case  the  petition  should  contain  only  one  count.3 

§  227.  The  rule  in  justices'  courts. —  Confusion  is  liable  to 
arise  unless  there  is  kept  carefully  in  mind  the  distinction  be- 
tween cases  originating  before  justices  of  the  peace  and  those 
brought  in  a  court  of  record.  The  only  restriction  to  joining- 
several  causes  of  action  in  proceedings  before  justices  is  that 
causes  of  action  founded  in  contract  cannot  be  joined  with  those 
founded  in  tort.4  In  cases  originating  in  courts  of  record  the 
rule  is  different.  Section  593 5  expressly  provides  that  causes  of 
action  shall  not  be  united  in  the  same  petition  unless  they  belong 
to  one  and  the  same  class  of  the  several  classes  enumerated  in 
that  section.6 

§  228.  Party  suing  or  being  sued  in  more  than  one  capacity. 
A  cause  of  action  by  or  against  a  person  in  his  individual  capacity 
cannot  be  joined  with  a  cause  of  action  by  or  against  the  same 
person  in  a  representative  capacity.7     Thus  an  action  for  waste 

1  Hatcher  v.  Winters,  71  Mo.  30.  which  he  holds  as  representative  or  as 

2  Roper  v.  Clay,  18  Mo.  383.  trustee.   I  confess  that  I  am  unable  to 

3  Comer  v.  Taylor,  82  Mo.  341.  see  the  force  of  this  reasoning.   Under 

4  See  Rev.  Stat.  1899,  sec.  3851.  the  common-law  practice  the  objec- 

5  Rev.  Stat  1899.  tion  would  of  course  be  a  fatal  one, 
c  Roberts  v.  Quincy,  O.  &  K.  C.  R.  since  the  common  law  knows  no  judg- 

Co.,  43  Mo.  287.  ment  in  a  legal  action  except  a  single 

7  Mertens  v.  Loewenberg,  69  Mo.  208.  and  absolute  one.    But  it  is  not  ap- 

The  reason  for  thus  holding  is  stated  parent  that  there  is  presented  any 

to  be  that  if  a  plaintiff  sues  as  an  in-  greater  difficulty  in  determining  in  a 

dividual  the  recovery  belongs  to  him  single  judgment  what  portion  of  the 

personally,  while  if  he  sues  in  a  rep-  judgment  shall  be  satisfied  out  of  the 

resentative   capacity  the  money  be-  property  of  the  individual,  and  what 

longs  to  the  estate  or  to  the  beneficiary  portion  of  it  shall  be  satisfied  out 

whom  he  represents.     On  the  other  of  the  estate  which  that  same  indi- 

hand,  if  he  is  sued  as  an  individual  vidual  represents,  and  in  ordering  its 

the  judgment  goes  against  his  own  satisfaction  accordingly,  than  is  pre- 

property,  whereas  if  he  is  sued  as  a  sented  in   many  of  the  judgments 

representative  the  judgment  is  to  be  which  our  code  permits  to  be  rendered, 

satisfied  out  of  the  goods  or  funds  It  must  be  admitted,  however,  that 


134:  JOINING   CAUSES    OF   ACTION.  [§§  229,  230. 

against  oar  who  is  in  possession  of  land  as  an  executor  under  the 
will  of  the  former  owner  is  improperly  joined  with  an  action  for 
partition  of  the  property, to  which  defendant  is  made  a  party  in 
his  personal  capacity.1  In  State  to  use  v.  /Schneider,2  it  was  held 
that  a  count  against  A.  as  principal  and  B.  as  surety  in  a  bond 
may  be  joined  with  a  count  against  B.  as  principal  and  A.  as 
surety  in  another  bond.  But  it  was  also  held  that,  even  if  there 
were  a  misjoinder,  it  was  cured  by  verdict,  and  the  decision  can- 
not, therefore,  be  said  to  be  of  controlling  authority. 

§  229.  Joining  legal  and  equitable  causes. —  The  Code  per- 
mits the  joining  of  legal  and  equitable  causes  of  action.3  But 
where  a  petition  mingles  in  one  count  allegations  common  to  ac- 
tions at  law  with  those  peculiar  to  equitable  proceedings  for  the 
reformation  of  a  policy,  the  plaintiff  may  be  compelled  to  elect; 
and  if  he  elects  to  proceed  at  law,  he  abandons  his  cause  in  equity, 
and  is  not  entitled  to  introduce  any  evidence  which  is  pertinent 
alone  to  that  issue.4 

§  230.  The  different  causes  of  action  must  be  separately 
stated. — Where  different  causes  of  action  are  united  in  the  same 
petition,  they  must  all  belong  to  one  of  the  classes  mentioned, 
and  must  be  separately  stated,  with  the  relief  sought  for  each 
cause  of  action,  in  such  manner  that  they  may  be  intelligibly 
distinguished.5  If  two  causes  of  action  belong  to  the  same  one  of 
those  classes  mentioned  in  section  593,  they  may  be  joined  in  one 
suit,  but  they  should  be  stated  in  separate  counts.6     Where  sev- 

some  countenance  is  afforded  to  the  permit  an  action  by  or  against  a  per- 

above  ruling  by  the  language  of  the  son  as  an  individual  to  be  joined  with 

seventh    subdivision  of   section  593,  an  action  by  or  against  the  same  indi- 

taken  in   connection  with    the  last  vidual  in  a  representative  or  fiduciary 

sentence  of  that  section.   The  seventh  capacity.     See  Rubey  v.  Barnett,  12 

subdivision  names  as  one  of  the  classes  Mo.  3. 

of  actions  "claims  by  or  against  a  party  1  Lilly  v.  Menke,  126  Mo.  190. 

in  some  representative  or  fiduciary  ca-  2  35  Ma  533. 

pacity,"  and  this  is  followed  by  the  3  Rev.  Stat.  1899,  sec.  593;  Bobb  v. 

provision  that  the  causes  of  action  so  Woodward,  42  Mo.  482;  Henderson  v. 

united  must  all  belong  to  one  of  these  Dickey,  50  Mo.  161. 

classes.     It  may  be  urged  with  con-  4  Kabrich  v.  State  Ins.  Co.,  48  App. 

siderable  force  that  an  action  by  or  393.     See  also  the  cases  cited  §  231. 

against  a  person  in  his  individual  ca-  5Rev.  Stat.  1899,  sec.  593;  Childs  v. 

pacity    cannot    be    included    in   the  Bank  of  Missouri,  17  Mo.  213;  Mooney 

seventh  class.     I  cannot  escape  the  v.  Kennett,  19  Mo.   551;   Linville  v. 

conviction    that  in    this    regard  an  Harrison,  30  Mo.  228. 

amendment  to  the  section  might  well  6  Sinclair  v.  Mo.,  K.  &  T.  R.  Co.,  70- 

be  made,  which  shall  in  express  terms  App.  588. 


§§  231,  232.]  JOINING    CAUSES    OF   ACTION.  135 

eral  causes  of  action,  founded  upon  so  many  distinct  contracts 
for  the  transportation  of  lumber  at  different  times,  are  joined  in 
the  same  count,  the  defect  is  such  that  it  may  be  taken  advan- 
tage of  even  by  motion  in  arrest.1 

§  231.  Same  —  Legal  and  equitable  causes.—  While  the  Code 
permits  the  joining  of  legal  and  equitable  causes  of  action,  the 
rule  applies  here  also  that  each  cause  of  action  must  be  separately 
stated,  and  the  relief  separately  prayed,  so  that  each  may  be 
separately  tried,  the  one  by  the  court  and  the  other  by  jury,  if 
a  jury  be  demanded.2  And  their  joinder  in  the  same  count 
would  be  fatally  defective.3  But  though  it  is  improper  to  mingle 
a  cause  which  is  purely  equitable  with  one  which  is  strictly 
legal  in  the  same  count,  and  proceed  to  try  them  together  before 
a  chancellor,  it  does  not  follow  that  a  party  must  in  all  cases 
get  his  decree  of  title,  and  then  bring  a  separate  and  independ- 
ent action  of  ejectment  to  obtain  possession.4  If  there  should 
be  such  an  improper  mingling  of  legal  and  equitable  causes  in 
one  count,  and  there  is  enough  in  the  petition  to  show  a  good 
ground  for  equitable  relief,  the  remainder  of  the  petition  may  be 
treated  as  surplusage,  or  the  chancery  branch  of  the  case  may  be 
rejected  and  a  trial  had  as  of  an  action  at  law.5  It  is  not  per- 
missible to  unite  in  one  count  a  petition  for  the  enforcement  of 
a  mechanic's  lien  against  property  owned  by  a  married  woman 
with  one  to  charge  other  property  belonging  to  the  married 
woman,  which  is  her  separate  property,  with  the  payment  of  the 
debt.  The  enforcement  of  a  mechanic's  lien  is  a  statutory  pro- 
ceeding triable  by  a  jury,  while  the  other  branch  of  the  case  is 
purely  equitable.6 

§232.  Causes  of  action  must  be  separately  stated  — In- 
stances.—  There  was  one  cause  of  action  for  damages  done  by 
defendant,  a  railroad  company,  to  a  brick  building  belonging  to 
plaintiff  by  reason  of  the  construction  of  a  railroad  track  on  de- 
fendant's own  land,  within  three  feet  of  the  front  wall  of  said 
building,  and  another  cause  of  action  for  damages  by  reason  of 
the  trespass  committed  by  defendant  on  plaintiff's  land.     These 


i  Hoagland  v.  Hannibal  &  St  J.  R.  St.  J.  R.  Co.,  39  Mo.  451;  Thornton  v. 

Co.,  39  Mo.  451.  Irwin,  43  Mo.  153;  Phillippi  v.  McLean, 

2Bobb  v.  Woodward,  42  Mo.   482;  5  App.  587. 
Kabrich  v.  State  Ins.  Co.,  48  App.  393.        4  Henderson  v.  Dickey,  50  Mo.  161. 

Coy  v.  Yager,  34  Mo.  134;  Myers  5Wynn  v.  Cory,  43  Mo.  301. 
v.  Field,  37  Mo.  434;  Peyton  v.  Rose.  "Kern  v.  Pfaff,  44  App.  29. 
41  Mo.  257;  Hoagland  v.  Hannibal  & 


136  JOINING    CAUSES   OF   ACTION.  [§  233. 

two  causes  of  action  were  set  out  in  one  count  and  therefore  con- 
stituted a  misjoinder,  and  plaintiff  should  have  been  compelled 
to  elect.1  A  petition  against  a  railroad  company  for  killing  stock, 
which  unites  in  one  count  a  cause  of  action  for  not  maintaining 
fenoes,  etc.,  and  a  cause  of  action  at  common  law  for  not  sound- 
ing the  bell  at  the  crossing,  and  a  cause  of  action  for  negligence, 
is  bad.2  Damages  for  a  permanent  nuisance  and  for  a  temporary 
nuisance  may  be  recovered  in  one  action,  but  should  not  be  stated 
in  one  count.3  A  cause  of  action  based  upon  a  settlement  be- 
tween plaintiff  and  defendant,  and  a  promise  by  the  latter  to 
pay  the  amount  thus  found  to  be  due  the  former,  and  one  based 
upon  the  payment  by  plaintiff  after  the  settlement  of  moneys 
for  the  use  of  defendant,  are  as  distinct  as  if  they  grew  out  of 
separate  transactions;  and  while  they  may  be  united  in  the  same 
petition,  they  cannot  be  united  in  the  same  count.  The  payment 
of  the  sum  after  the  settlement  was  in  no  way  connected  with 
the  settlement,  and  could  not  be  recovered  in  a  lump  with  the 
amount  of  the  settlement.4  In  a  proceeding  to  establish  a  de- 
mand against  the  estate  of  a  decedent  for  taxes  whidh  have  ac- 
crued on  personalty  in  the  hands  of  the  administrator,  the  taxes 
for  each  year  should  be  set  out  in  separate  counts.  If  the  taxes 
due  for  all  the  years  are  set  out  in  one  count,  it  is  not  a  ground 
of  demurrer,  but  defendant's  remedy  is  by  motion  to  require 
plaintiff  to  elect  upon  which  cause  of  action  he  will  go  to  trial.5 
§  233.  The  different  counts  must  be  consistent. —  The  rule 
which  prohibits  inconsistent  defenses  necessarily  prohibits  in- 
consistent counts.  The  office  of  pleading  is  to  produce  issues  of 
fact  or  law,  and  as  the  proof  in  all  cases  must  correspond  with 
the  allegations  made,  it  would  lead  to  the  most  absurd  results  if 
the  plaintiff  in  support  of  one  count  of  his  petition  were  per- 
mitted to  adduce  evidence  the  tendency  of  which  is  to  directly 
contradict  his  averments  in  another  count.6  The  different  counts 
in  a  petition  are  inconsistent  when  the  proof  of  one  count  neces- 
sarily disproves  the  other.7'    A  count  for  the  breach  of  warranty 

1  Dougherty  v.  "Wabash,  St.  L.  &  Pac.  In    connection   with   this    subject 
R  Co.,  19  App.  419.  §  215  et  seq.,  ante,  should  be  consulted. 

2  Harris  v.  Wabash  R  Co.,  51  App.  6  Roberts   v.  Quincy,  O.  &  K.  C.  R. 
125.  Co.,  43  App.  287. 

s  Wallace  v.  Kansas  City  &  S.  R  Co.,        7  Enterprise  Soap  Works  v.  Sayers, 
47  App.  491.  51  App.  310;  Suter  v.  Bischoff,  63  App. 

*  Brown  v.  Chad  wick,  32  App.  615.        157. 

5  State  ex  reL  v.  Tittmann,  103  Mo. 
553. 


§  234.]  JOINING   CAUSES   OF   ACTION.  137 

in  the  sale  of  personalty  is  inconsistent  with  another  count  based 
on  the  theory  that  such  sale  had  been  rescinded.1  In  an  action 
against  a  railroad  company  for  the  killing  of  plaintiff's  horse  the 
statement  contained  three  counts.  In  the  first  the  injury  was 
alleged  to  have  resulted  from  the  failure  of  the  defendant  to 
erect  fences  and  cattle-guards  where  the  road  ran  through  in- 
closed fields;  in  the  second,  a  similar  failure  where  the  road  ran 
through  uninclosed  lands;  and  in  the  third,  a  failure  to  maintain 
a  sufficient  crossing  over  a  public  road.  It  was  held  that  the 
counts  were  not  inconsistent.2  "  A  railroad,"  says  Eombauer,  J., 
"  may  run  between  inclosed  fields  and  uninclosed  lands  at  the 
same  point,  since  fields  may  be  inclosed  on  one  side  of  it  and  un- 
inclosed on  the  other.  It  could  also,  at  the  point  where  the 
stock  came  upon  the  track,  run  along  a  wagon  road,  and  a  lia- 
bility might  attach  to  the  railroad  company  for  not  fencing  its 
side  towards  the  road,  or  for  not  maintaining  the  crossing  of 
that  road  over  its  tracks.  Either  of  these  failures  may  have  caused 
the  injury,  and  plaintiff  had  a  right  to  proceed  for  either  or  all 
together,  though  he  was  limited  to  a  single  recovery." 3  (p.  290.) 
§  234.  Each  count  must  be  complete  in  itself. —  Each  count 
in  a  petition  must  stand  as  an  independent  statement,  and  each 
must  contain  all  the  allegations  necessary  to  the  statement  of  a 
cause  of  action.4  This  rule  is  the  only  safe  one  to  follow,  since 
if  it  is  followed  there  can  be  no  question  as  to  the  validity  of  the 
several  counts.  There  is  an  especial  risk  in  any  other  course,  if 
there  is  danger  that  any  one  of  the  counts  may  be  attacked  by  de- 
murrer or  motion,  and  may  be  pronounced  insufficient.  As  any 
count  thus  adjudged  bad  is  absolutely  eliminated  from  the  peti- 
tion, and  the  petition  stands  as  if  it  never  had  existed,  if  any  of 
its  averments  are  referred  to  in  any  other  count,  such  reference 
manifestly  becomes  a  nullity.  Still  the  rule  is  not  always  ad- 
hered to  in  full  strictness.  Thus,  it  is  held  that  when  there  are 
several  counts,  mere  matter  of  inducement  need  not  be  stated  in 
subsequent  counts,  if  in  the  counts  in  which  it  is  not  restated 
there  is  an  apt  reference  to  the  count  in  which  it  is  stated;  but 

1  Enterprise  Soap  Works  v.  Sayers,    fenses  in  an  answer  must  be  consist- 
51  App.  810.  ent  is  shown  in  chapter  XIX  (§§  527- 

2  Roberts  v.  Quincy,  O.  &  K.  C.  R.     535). 

Co.,  43  App.  387.  <Boeckler   v.  Mo.   Pac.   R.   Co.,   10 

3 The  averments  of  a  petition  must  App.  448;  Clark  v.  Whitaker  Iron  Co., 

always  be    consistent,   whether    the  9  App.  446;  Russell  v.  Hannibal  &  St. 

petirton  contains  one  or  more  counts.  J.  R.  Co.,  83  Mo.  507;  Weber  v.  Squier, 

(See  §  284,  post)    That  different  de-  51  App.  601. 


138  JOINING   CAUSES   OF   ACTION.  [§§  235,  230. 

all  the  constitutive  facts  must  be  stated  in  each  count.1  And  if 
the  substance  of  the  cause  of  action  is  sufficiently  stated  in  one 
count,  that  count  will  support  a  verdict,  though  matters  of  in- 
ducement are  not  set  out  in  the  other  counts  except  by  reference.2 
So,  too,  it  has  been  held  that  a  fact  once  sufficiently  stated  in  a 
petition  need  not  be  again  repeated  at  length,  but  it  is  enough 
that  it  be  intelligibly  referred  to,  where  there  is  occasion  in  the 
ding  to  allude  to  it  again.3 

§  235.  Allegations  in  one  count  which  are  not  necessary  to  ex- 
plain or  supplement  allegations  of  other  counts  are  not  matters 
of  inducement,  but  substantive  averments  of  the  first  count.4  If 
proper  averments  are  made  in  the  first  count  of  a  petition  show- 
ing the  corporate  existence  or  powers  of  the  parties  to  the  ac- 
tion, those  averments  need  not  be  repeated  in  subsequent  counts.5 
An  action  was  based  upon  a  copartnership  agreement  between 
the  parties  that  neither  party  should  indorse  the  firm  name  on  a 
note  without  the  consent  of  the  other.  Several  breaches  of  this 
contract  were  alleged  in  separate  counts.  In  the  first  count  the 
fact  of  the  copartnership  and  the  terms  of  the  contract  were  set 
out,  but  these  averments  were  not  repeated  in  the  subsequent 
counts.  It  was  held  that  the  subsequent  counts  were  not  thereby 
vitiated.6  But  in  a  much  later  case,  where  the  first  count  of  the 
petition  set  out  a  contract  of  sale  and  delivery  of  a  certain  quan- 
tity of  ice  during  a  certain  period,  and  in  the  second  count  the 
petition  averred  that  upon  the  making  of  "  said  contract "  plaintiff 
paid  a  certain  sum,  it  was  held  that  the  words  "  said  contract," 
although  referring  to  the  contract  set  out  in  the  first  count,  were 
not  a  sufficient  statement  of  it,  but  that  its  date,  consideration 
and  subject-matter  should  have  been  set  out  in  the  second  count 
as  in  the  first;  and  the  judgment  was  reversed  on  account  of  the 
insufficiency  of  the  second  count.7 

§  236.  Tlie  same  cause  of  action  stated  in  several  counts. — 
It  is  permissible  to  state  the  same  cause  of  action  in  different 
ways  in  different  counts,  for  the  purpose  of  so  varying  the  form 
of  the  statement  as  to  meet  any  possible  state  of  proof.8   The  pe- 

1  Bricker  v.  Mo.  Pac.  R.  Co.,  83  Mo.  and  it  cannot  with  safety  be  relied 

391;    St.  Louis  Gas  Light  Co.  v.  St.  on. 

Louis,  86  Mo.  495;  Weber  v.  Squier,  5.1  4  Alexander  v.  Lupe,  11  App.  597. 

App.  601.  s  Aull  Sav.  Bank  v.  Lexington,  74 

-'  Neier  v.  Mo.  Pac.  R.  Co.,  12  App.  35.  Mo.  104. 

3  Ward  v.  Kelly,  7  App.  565.     How-  «  Stone  v.  Wendover,  2  App.  247. 

ever,  the  case  in  which  this  doctrine  7  Weber  v.  Squier,  51  App.  601. 

is  announced  is  not  reported  at  length,  8Brinkman  v.  Hunter,  73  Mo.  172; 


§  237.]  JOINING    CAUSES   OF   ACTION.  139 

tition  may  count  on  a  special  contract  and  also  on  a  quantum 
meruit,  and  plaintiff  cannot  in  such  case  be  compelled  to  elect  on 
which  count  he  will  go  to  the  jury.1  And  where  the  two  counts 
of  a  petition  refer  to  one  and  the  same  cause  of  action,  a  verdict 
on  either  count  will  bar  a  further  recovery  on  both.2  The  rule 
can  never  apply  except  to  cases  where  the  various  statements  in 
the  different  counts  are  not  necessarily  inconsistent  or  contra- 
dictory ;  the  rule  which  prohibits  inconsistent  defenses  necessa- 
rily prohibits  inconsistent  counts.3 

§  237.  This  practice  not  uniformly  approved. —  But  this  prac- 
tice of  setting  out  the  same  cause  of  action  in  two  or  more  inde- 
pendent counts  is  plainly  repugnant  to  the  theory  of  the  reform 
procedure.  It  certainly  ought  not  to  have  been  allowed  when 
the  statute  required  the  petition  to  be  verified.  And  though  the 
oath  is  not  now  required,  yet  the  obligation  to  state  the  essential 
truth  is  as  great  now  as  it  ever  was,  and  sham  counts  are  utterly 
at  war  with  the  spirit  of  the  Code.4  And  this  practice  is  not  uni- 
formly approved  by  our  courts.  The  St.  Louis  court  of  appeals 
very  properly  says  that  it  was  one  object  of  the  practice  act  to 
remedy  the  falsity,  as  well  as  the  injustice  to  the  defendant,  of 
stating  one  cause  of  action  as  many.  There  is  no  reason  for  the 
jDractice,  since  there  is  under  the  Code  such  facility  of  amendment 
that  it  is  easy  to  secure,  on  the  one  hand,  truth  and  consistency 
in  pleading,  together  with  the  preservation  of  the  defendant's 
rights,  and,  on  the  other,  absence  of  any  injury  to  the  plaintiff 
arising  from  inability  to  tell  in  advance  what  substantive  facts 
the  evidence  will  present.5  Even  in  cases  where  the  practice  is 
followed  of  stating  the  same  cause  of  action  in  different  counts, 
there  can  of  course  be  but  one  recovery ; 6  as,  for  instance,  where 
a  plaintiff  combines  a  count  on  an  express  contract  with  one  on 
a  quantum,  meruit  for  the  same  cause  of  action.7  And  there  must, 
in  all  cases  of  this  character,  be  at  least  one  good  count  by  which 
the  judgment  may  be  supported.8 

St.  Louis  Gas  Light  Co.  v.  St.  Louis,  Co.,  43  App.  287.    The  case  of  Harris 
86  Mo.  495;  Burbridge  v.  Kansas  City  v.  Pacific  Exp.  Co.,  67  App.  175,  may- 
Cable  R.  Co.,  36  App.  669;  Roberts  v.  be  considered  in  this  connection. 
Quincy,  O.  &  K.  C.  R.  Co.,  43  App.  287.  *  Druiding  v.  Lyon,  7  App.  199. 

i  Globe  L.  &  H.  Co.  v.  Doud,  47  App.  »  Druiding  v.  Lyon,  7  App.  199.  And 

439;  Childs  v.  Crithfield,  66  App.  422.  this  view  is  the  one  taken  in  the  cases 

But  the  decision  of  the  supreme  court  from  New  York  and  Ohio,  cited  in  the 

in  Ehrlich  v.  ./Etna  Life  Ins.  Co.,  88  Mo.  opinion. 

249,  is  apparently  the  other  way.  (i  Snurlock  v.  Mo.  Pac.  R  Co.,  93  Mo. 

2  Burbridge  v.  Kansas  City  Cable  R.  530. 

Co.,  36  App.  669.  7  Childs  v.  Crithfield,  66  App.  422. 

3  Roberts  v.  Quincy,  O.  &  K.  C.  R.        8  Terry  v.St.L.&S.F.RCo.,89Mo.586. 


CHAPTER  XI. 


THE  PETITION. 


233. 


the 


General    rules    governing 
petition. 

240.  Petition  in  equity. 

241.  Where  there  are  several  counts. 

242.  Form  of  the  petition. 

243.  The  statutory  provisions. 
244  The  caption. 

245.  Stating  the  venue, 


§  246.  Naming  the  parties. 

248.  Several  defendants. 

249.  Where  a  firm  sues  or  is  sued. 

250.  Stating  the  character  in  which 

the  party  sues  or  is  sued. 
253.  Showing    the  interest  of   the 
party. 


§238.  General  rules  governing  the  petition. —  The  funda- 
mental requirement  of  good  pleading,  whether  at  common  law 
or  under  the  Code,  is  that  the  petition  must  be  so  drawn  as  to 
tender  a  definite  issue  or  issues,  and  that  it  is  not  so  obscure  as 
to  require  the  defendant  to  grope  in  the  dark  in  order  to  ascer- 
tain its  meaning.1  A  petition  may  be  grammatically  incorrect 
and  yet  be  sufficient.2  Under  the  former  practice,  where  a  bill 
in  equity  generally  presented  matters  of  evidence  in  order  to 
sift  the  conscience  of  the  defendant,  and  where  it  was  for  that 
reason  verified  by  the  plaintiff,  it  was  proper  that  many  facts 
should  be  stated  upon  information  and  belief.  But  under  the 
Code  such  facts  must  now  be  set  out  as  existing  and  constitutive 
facts,  and  if  they  relate  only  to  evidential  matters  they  must 
be  omitted  altogether.  For  that  reason,  among  others,  it  is  not 
permissible  in  a  petition  to  make  the  charges  rest  upon  the 
information  and  belief  of  the  plaintiff.  And  if  it  were  ever 
admissible  under  the  former  practice  to  charge  fraud  upon  infor- 
mation and  belief,  that  it  cannot  be  done  under  the  present  prac- 
tice is  decided  in  Nichols-Shepard  Go.  v.  Hubert?  If  the  plaint- 
iff sues  in  a  representative  capacity,  the  petition  must  not  only 
set  out  the  facts  showing  his  appointment  and  authority,  but  if 
the  answer  denies  these  facts  they  must  be  proved  at  the  trial.4 


1  Huston  v.  Tyler,  140  Mo.  252. 

2  Parsons  v.  Mayfield,  73  App.  309. 
See  §  242,  post 

a  150  Mo.  620. 

*  Porter  v.  Hannibal  &  St.  J.  R.  Co., 


60  Mo.  160;  Sherman  v.  Hannibal  & 
St  J.  R  Co..  72  Mo.  62;  Randolph  v. 
Hannibal  &  St.  J.  R.  Co.,  18  App.  609. 
Consult  also  §  250,  post. 


§§  239-242.]  THE    PETITION.  141 

"While  our  courts  have  always  given  a  liberal  construction  to 
pleading  under  the  Code,  they  have  sternly  set  their  faces  against 
the  attempt  to  sue  on  one  cause  of  action  and  recover  on  another.1 

§  239.  In  all  proceedings  the  christian  and  surname  of  both 
plaintiff  and  defendant  should  be  set  forth  in  the  pleadings  with 
accuracy.2 

§  240.  Petition  in  equity. —  "When  considering  the  question 
whether  a  bill  in  equity  sets  forth  facts  sufficient  to  constitute  a 
cause  of  action,  it  must  be  borne  in  mind  that  in  an  equitable 
proceeding  there  is  one  essential  element  which  does  not  exist  in 
proceedings  at  law;  and  that  is  that  the  bill  must  state  facts  — 
not  conclusions  of  law  —  which,  if  true,  show  that  the  case  comes 
within  some  one  or  more  of  the  branches  of  equitable  jurisdic- 
tion. And  the  facts  set  forth  must  always  show  that  the  plaint- 
iff has  not  an  adequate  remedy  at  law.3 

§  241.  Where  there  are  several  counts. —  Where  there  is 
more  than  one  count  in  the  petition,  mere  matters  of  inducement 
need  not  be  restated  in  each  count.  But  substantive  facts,  con- 
stituting the  cause  of  action,  must  be  set  forth  in  each  count;  and 
the  defects  in  one  count  cannot  be  supplied  from  the  statements 
contained  in  another  count.4  The  joinder  of  causes  of  action  in 
different  counts,  and  the  method  of  setting  forth  the  facts  where 
there  is  more  than  one  count  in  a  petition,  are  fully  discussed  in 
chapter  X. 

§  242.  Form  of  the  petition. —  In  a  code  system  the  statute 
looks  first  of  all  to  the  fact  of  a  grievance  demanding  redress, 
and,  asking  no  question  about  the  particular  form  in  which  the 
demand  is  made,  declares  that  one  form,  the  civil  action,  shall 
suffice  for  any  and  every  case  wherein  the  grievance  and  the 
right  of  redress  shall  plainly  appear.5  A  petition  may  be  in- 
artificially  and  clumsily  drawn,  and  may  even  be  incoherent,  yet 
if  taken  altogether  it  states  a  cause  of  action,  it  is  sufficient.6 
And  such  a  petition  is,  unless  objection  to  it  is  made  by  either 
demurrer,  motion  or  answer,  as  valid  to  all  intents  and  purposes 
as  though  prepared  by  the  most  skilful  hand.7 

iMcCormick  v.  Interstate  Consoli-  See  also  Stillwell  v.  Hamm,  97  Mo. 

dated  Rapid  Transit  Ry.  Co.,  154  Ma  579,  585. 

191.  'Lynch  v.  St.  Joseph  &  S.  R  Co., 

2Turner  v.  Gregory.  151  Mo.  100.  Ill  Mo.  601;  Putnam  v.  Hannibal  & 

'  Consult  ch.  XVI.  St.  J.  R  Co.,  22  App.  589;  State  ex  rel. 

*  Russell  v.  Hannibal  &  St.  J.  R  Co.,  v.  Carroll,  63  Mo.  156.     See  §  238,  n.  2, 

83  Mo.  507.  ante. 

s  Sumner  v.  Tuck,  10  App.  269,  276.  7  Elfrank  v.  Seiler,  54  Mo.  134. 


142  THE   PETITION.  [§§  243,  24:4. 

§  243.  The  statutory  provisions. —  The  petition  should  con- 
tain, first,  the  title  of  the  cause,  specifying  the  term,  the  name  of 
the  court,  and  the  county  in  which  the  action  is  brought,  and  the 
names  of  the  parties  to  the  action,  plaintiffs  and  defendants; 
second,  a  plain  and  concise  statement  of  the  facts  constituting  the 
cause  of  action,  without  unnecessary  repetition;1  third,  a  demand 
of  the  relief  to  which  the  plaintiff  may  suppose  himself  entitled. 
If  the  recovery  of  money  is  demanded,  the  amount  demanded 
must  be  stated,  or  such  facts  must  be  stated  as  will  enable  the 
defendant  and  the  court  to  ascertain  the  amount  demanded.2 

§214.  The  caption. —  The  requirement  that  the  term  of  the 
court  must  be  specified 3  is  a  requirement  as  to  form  merely, 
and  does  not  go  to  the  cause  of  action  or  the  jurisdiction  of 
the  court.4  If  the  caption  contains  not  only  the  names  of  the 
parties,  but  also  a  description  of  the  capacity  in  which  plaintiff 
sues  or  defendant  is  sued,  this  is  mere  descriptio persona,  and  forms 
no  part  of  the  statement  of  facts  which  the  petition  is  required 
to  contain.  If  such  description  is  confined  to  the  caption,  and 
there  are  no  averments  in  the  petition  itself  as  to  the  character 
of  the  parties,  or  facts  showing  the  right  of  the  plaintiff  to 
sue  or  of  his  right  to  hold  the  defendant  in  the  character  in 
which  he  is  sued,  this  will  be  a  fatal  defect, —  so  fatal  that,  even 
though  the  petition  is  not  attacked  by  demurrer  and  no  motion 
in  arrest  is  tiled,  yet  the  supreme  court  will  notice  it  and  reverse 
the  judgment  for  that  reason.5  On  the  other  hand,  the  fact  that 
in  the  caption  there  is  no  proper  statement  of  the  parties  or  of 
the  character  in  which  they  sue  (or  are  sued)  does  not  constitute 
a  fatal  defect,  if  there  is  in  the  body  of  the  petition  a  substantial 
averment  showing  the  capacity  of  the  plaintiff  to  sue  and  to  re- 
cover upon  the  cause  of  action  stated.6  And  a  description  of 
plaintiff  in  the  title  as  administrator  may  be  wholly  disregarded, 
if  in  the  body  of  the  petition  there  is  a  statement  of  sufficient 
facts  to  support  a  cause  of  action  in  favor  of  the  plaintiff,  either 
as  an  individual  or  in  some  other  capacity.7   So,  too,  in  an  action 

i  The  original  practice  act  contained  5  State  to  use  v.  Matson,  38  Ma  489; 

also  the  following  words:  "and  in  such  State  to  use  v.  Bartlett,  68  Mo.  581. 

manner  as  to  enable  a  person  of  com-  See  also  §  250,  post. 

mon  understanding  to  know  what  is  6  State  to  use  v.  Patton,  42  Mo.  530; 

intended."    Laws  1849,  p.  80,  sec.  7.  Fuggle  v.  Hobbs,  42  Mo.  537.  To  same 

2 Rev.  Stat.  1899,  §  592.  effect:  State  to  use  v.  Bartlett,  68  Mo. 

3  See  the  preceding  section.  581. 

*  Ryors  v.  Pryor,  31  App.  555.  t  Fuggle  v.  Hobbs,  42  Ma  537. 


§§  245,  246.]  THE   PETITION.  143 

by  the  indorsee  of  a  note,  where  the  caption  was  "A.  to  the  use  of 
B.,  plaintiff,  vs.  C,  defendant,"  but  in  the  body  of  the  petition  the 
plaintiff  A.  alleged  title  in  himself  by  indorsement  from  B.,  the 
words  in  the  caption  "  to  the  use  of  B."  may  be  regarded  as  mere 
surplusage.1  And  the  omission  of  the  name  of  a  party  defendant 
from  the  caption  of  an  amended  petition  is  immaterial,  if  the 
name  appears  in  the  body  of  such  petition.2  If  the  suit  is  brought 
by  a  trustee,  it  is  not  necessary  that  the  name  of  the  beneficiary 
should  appear  in  the  caption.3  After  verdict  the  caption  ma}r 
be  resorted  to  in  support  of  the  verdict.  Thus  where  the  aver- 
ments in  a  petition  are  made  in  the  name  of  the  state  at  the  re- 
lation of  a  party,  resort  may  be  had  after  verdict  to  the  caption 
to  show  that  the  relator  is  the  guardian  of  the  minor  referred  to, 
where,  by  reasonable  intendment,  a  sufficient  cause  of  action  can 
be  made  out.4 

§  245.  Stating  the  venue. —  The  name  of  the  county  must  in 
all  cases  be  stated  in  the  margin  of  the  petition,  and  is  taken  to 
be  the  venue  intended  by  the  plaintiff;  and  it  is  not  necessary 
to  state  the  venue  in  the  body  of  the  petition  or  in  any  subse- 
quent pleading.5  The  venue  laid  in  the  margin  draws  to  itself 
all  transitory  matters  alleged  in  the  subsequent  pleading.6  In 
an  action  for  injuring  property  situated  on  plaintiff's  farm,  it  is 
not  necessary  to  indicate  the  precise  locality  of  the  farm  within 
the  county.7  If  the  cause  is  actually  tried  in  the  proper  county, 
the  failure  to  state  a  venue  is  cured  by  the  statute  of  jeofails.8 

§246.  Naming  the  parties.— Section  592 9  provides  that  in 
the  title  the  names  of  the  parties  plaintiff  and  defendant  shall  be 
given.  But  all  necessary  description  of  the  character  of  the  par- 
ties must  be  contained  in  the  petition  itself.10  If  enough  appears 
in  the  body  of  the  petition  to  show  the  object  of  the  suit,  as  well 
as  the  real  party  for  whose  use  and  benefit  it  is  prosecuted,  this 
is  a  substantial  compliance  with  the  statute.11  The  defendants  in 
an  action  were  designated  as  follows:  "  Missouri,  Kansas  &  Texas 
Railway  Co.,  a  corporation;  George  A.  Eddy  and  H.  C.  Cross,  re- 

i  Beattie  v.  Lett,  28  Mo.  596.  7  Palmer  v.  Mo.  Pac.  R  Co.,  70  Mo. 

2  Wolff  v.  Ward,  104  Mo.  127.  217. 

3  Phillips  v.  Ward,  51  Mo.  295.  8  Duncan  v.  Oliphant,  59  App.  1. 
*  State  ex  rel.  v.  Crow,  8  App.  596.  9  Rev.  Stat.  1899. 

See  also  §§  246-249,  post.  10  Higgins  v.  Hannibal  &  St.  J.  R 

5  Rev.  Stat.  1899,  sec.  620;  Palmer  v.  Co.,  36  Mo.  418.   See  also  §  244,  ante. 
Mo.  Pac.  R  Co.,  76  Mo.  217.  ll  State  to  use  v.  Patton,  42  Mo.  530. 

6  Benton  v.  Brown,  1  Mo.  393. 


144:  THE   PETITION.  [§§  247-240. 

oeivers,  defendants."  It  was  contended  that  the  suit  was  against 
the  corporation  and  not  against  the  receivers,  or  that  at  least  it 
was  against  both  the  corporation  and  the  receivers.  But  as  the 
petition  showed  that  the  real  defendants  were  the  receivers,  the 
action  was  held  to  be  one  against  them  alone,  and  not  against 
the  corporation.1  A  petition  in  partition  by  plaintiffs  in  behalf 
of  an  unincorporated  church  association  must  aver  that  the  plaint- 
iffs, as  trustees  of  the  church,  sue  for  themselves  and  all  other 
members  of  the  church.2  In  an  action  by  an  infant  the  petition 
must  show  that  the  plaintiff  is  an  infant,  and  sues  by  a  guardian 
or  next  friend  legally  appointed.3  But  the  averments  of  the  peti- 
tion in  this  regard  may  be  supported,  after  verdict,  by  a  refer- 
ence to  the  caption,  where,  by  reasonable  intendment,  a  sufficient 
cause  of  action  is  made  out  in  the  petition  itself.4 

§  247.  If  one  had  executed  a  bond  in  an  assumed  name,  he 
could  not,  under  the  common  law,  have  been  sued  by  his  true 
name,  though  the  declaration  may  have  contained  an  averment 
that  he  made  the  bond  in  an  assumed  name;  but  the  rule  is  other- 
wise under  the  Code.5  It  follows  necessarily  that  an  action  on 
a  promissory  note  may  be  brought  against  a  party  in  his  true 
name,  though  the  note  was  executed  by  him  under  an  assumed 
name.5 

§  248.  Several  defendants. —  "Where  an  action  founded  on 
contract  is  brought  against  several  defendants,  plaintiff  cannot 
be  nonsuited  because  he  fails  to  prove  that  all  the  defendants 
are  parties  to  the  contract,  but  he  may  have  judgment  against 
such  of  them  as  are  proved  to  be  parties  to  it.6  This  applies  to 
an  action  against  a  firm.7  In  an  action  on  a  joint  note  plaintiff 
may  dismiss  as  to  one  defendant  without  discharging  the  others.8 

§  249.  Where  a  firm  sues  or  is  sued. —  A  suit  cannot  be 
brought  in  a  firm  name;  the  proper  names  of  the  plaintiffs  must 
be  set  out.9  Nor  can  a  suit  be  maintained  against  a  partnership 
in  its  firm  name,  in  the  absence  of  actual  service  on  or  appear- 
ance by  its  individual  members.  In  no  case  will  service  by 
publication  against  a  partnership  in  its  firm  name  confer  jurisdic- 

i  Proctor  v.  Missouri,  K.  &  T.  R.  Co.,  6Rev.  Stat.  1899,  sec.  624;  Crews  v. 

42  App.  124.  Lackland,  67  Mo.  619;  Ross  v.  McAnaw, 

2  Lilly  v.  Menke,  126  Ma  190.  72  App.  99. 

3  Higgins  v.  Hannibal  &  St  J.  R  7  Ferguson  v.  Huston,  7  Mo.  416. 
Co.,  36  Mo.  418.  8  Brown  v.  Pearson,  8  Mo.  159. 

4  State  ex  reL  v.  Crow,  8  App.  596.  9Revis  v.  Lamme,  2  Ma  207. 

5  Sanders  v.  Anderson,  21  Mo.  402. 


§  250.]  THE    PETITION.  145 

tion  over  its  members.1  If  the  action  is  by  the  firm,  the  individ- 
ual names  should  be  set  out  in  the  body  of  the  petition,  otherwise 
the  partnership  must  be  proved.2  But  the  petition  is  not  demur- 
rable if  they  are  not  so  set  out,  provided  they  are  given  in  the 
caption.3  If  partners  are  sued  for  a  partnership  debt,  there  need 
be  no  allegation  of  a  partnership;  an  allegation  that  defendants 
are  indebted  is  sufficient.4  And  in  an  action  on  a  note  payable 
to  a  firm  it  is  not  necessary  to  allege  that  the  note  was  executed 
to  the  payees  by  their  firm  name.5 

§  250.  Stating  the  character  in  which  the  party  sues  or  is 
sued. —  "Where  the  plaintiff  sues  in  a  representative  capacity, 
the  allegations  of  the  petition  itself,  independent  of  the  caption, 
must  show  his  authority  to  bring  the  action.6  And  the  petition 
must  show  not  only  the  nature  of  the  claim,  but  the  character 
in  which  the  party  makes  the  claim.  If  one  sues  as  guardian 
he  must  so  state,  and  cannot  recover  on  a  petition  in  which  he 
seeks  to  enforce  an  individual  right.7  But  the  assignee  of  a  note 
need  not  set  out  in  the  petition  that  he  sues  as  assignee.8  Where 
in  the  caption  of  the  petition  the  plaintiffs  style  themselves  ex- 
ecutors, and  in  the  body  of  the  petition  state  that  the  note  sued 
on  was  made  to  their  testator,  aver  his  death,  and  bring  into 
court  their  letters  and  make  profert  of  them,  a  demurrer  on  the 
ground  that  it  is  not  alleged  in  the  petition  that  letters  testa- 
mentary were  granted  to  plaintiffs  by  a  court  of  competent  juris- 
diction should  be  overruled.9  Where  plaintiff  sues  in  a  repre- 
sentative capacity,  the  petition  must  not  only  set  out  the  facts 
showing  his  appointment  and  authority,  but,  if  the  answer  denies 
these  facts,  they  must  be  proved  at  the  trial.10  In  a  suit  brought 
by  an  infant,  the  failure  of  the  petition  to  allege  the  appoint- 
ment of  a  guardian  or  next  friend  to  prosecute  the  suit  consti- 
tutes an  objection  which  goes  merely  to  the  legal  capacity  of 
the  plaintiff  to  sue,  and,  if  no  objection  is  taken  to  it  before  the 

1  Johnson  Machinery  Co.  v.  Watson,        6Headlee  v.  Cloud,  51  Mo.  301. 

57  App.  629.  1  Rhoades  v.  McNulty,  52  App.  301. 

2  Rev.  Stat.  1899,  sec.  740.  8  Alexander  v.  Hayden,  2  Mo.  211. 
3Orr  v.  How,  55  Mo.  328.  9Bird  v.  Cotton,  57  Mo.  568. 

4  Gates  v.  Watson,  54  Mo.  585;  Stix  10 Porter  v.  Hannibal  &  St.  J.  R.  Co., 
v.  Mathews,  63  Mo.  371.  60  Mo.  160;  Sherman  v.  Hannibal  & 

5  Lee  v.  Hunt,  6  Mo.  163,  which  case  St.  J.  R  Co.,  72  Mo.  62;  Randolph  v. 
overruled  the  earlier  cases  of  Tabor  v.  Hannibal  &  St.  J.  R.  Co.,  18  App. 
Jameson,  5  Mo.  494,  and  Dyer  v.  Sub-  609. 

lette,  6  Mo.  14. 
See  also  the  next  preceding  section. 
Mo.  Code  Pl.—  10 


146  the  petition.  [§§  251,  252. 

trial,  it  is  such  an  imperfection  as  is  cured  by  the  statute  of  jeo- 
fails.1 

vj  251.  A  statement  in  a  petition  that  plaintiff  sues  in  the  ca- 
pacity of  administrator  is  a  sufficient  allegation  that  he  was  ad- 
ministrator.2 So  a  petition  sufficiently  shows  plaintiff's  right  to 
sne  as  an  administrator  which  alleges  the  death  of  his  intestate, 
his  appointment  as  administrator  by  a  certain  court,  that  such 
court  had  probate  jurisdiction  in  the  county  in  which  the  intes- 
tate died,  and  that  plaintiff  qualified  and  was  acting  as  such 
administrator.3  If  plaintiff  sues  as  administrator  de  honis  non, 
and  the  petition  shows  that  the  estate  had,  prior  to  plaintiff's  ap- 
pointment, been  in  charge  of  two  persons  as  administrators,  and 
then  alleges  that  the  letters  of  one  of  said  persons  had  been  re- 
voked, but  says  nothing  about  the  other,  the  petition  is  fatally 
defective.4  In  S'ate  ex  rel.  v.  Carroll?  Carroll  was  removed  as 
guardian  and  curator  of  a  minor,  and  relator  was  appointed  in 
his  place.  In  an  action  on  the  bond  the  relator  failed  to  state, 
as  he  should  have  done,  that  Carroll,  the  defendant,  was  duly 
appointed  by  the  probate  or  county  court  having  jurisdiction  of 
the  matter,  but  he  did  allege  that  Carroll  was  appointed  guard- 
ian and  curator  in  conformity  to  law  in  such  cases  made  and 
provided.  In  connection  with  this  allegation  there  was  an  aver- 
ment that  Carroll  made  his  settlement  in  the  Osage  county  court, 
the  court  having  jurisdiction  over  the  matter,  and  that  the  court 
approved  the  same.  The  supreme  court  held  that,  taking  all 
these  allegations  together,  they  might  be  construed  as  amount- 
ing to  an  averment  that  Carroll  was  regularly  appointed  by  the 
proper  authority  in  Osage  county.  Says  Wagner,  J. :  "  No  other 
inference  can  be  drawn.  The  jurisdiction  of  the  county  court, 
and  the  proceedings  therein  as  to  the  settlement,  are  alleged,  and 
the  averment  of  appointment  must  be  construed  in  connection 
with  them."  (p.  158.)  An  allegation  in  a  petition  against  a  per- 
son who  is  of  unsound  mind  that  the  co-defendant  of  the  insane 
person  is  the  duly  appointed,  qualified  and  acting  guardian  is  a 
sufficient  allegation  of  his  appointment  as  guardian.6 

§  252.  In  an  action  against  an  officer  it  is  not  necessary  to 
declare  against  him  in  his  official  capacity.7    But  if  an  adminis- 

i  Lyddon  v.  Dose,  81  App.  64.  4  State  to  use  v.  Green,  65  Mo.  528. 

2  Duncan  v.   Duncan,   19  Mo.   368;  5  62  Mo.  156. 

Dodson  v.  Seroggs,  47  Mo.  285.  6  Wisdom  v.  Shanklin,  74  App.  428. 

a  Eans  v.  Exchange  Bank,  79  Mo.  182.  *  Davis  v.  Cooper,  6  Mo.  148. 


§  253.]  THE   PETITION.  147 

trator  de  horn's  non  brings  an  action  upon  the  bond  of  bis  prede- 
cessor as  administrator,  he  must  allege  in  his  petition  the  fact  of 
defendant's  appointment  as  administrator,  though  it  is  sufficient 
that  such  averment  be  made  in  general  terms.1 

§  253.  Showing  the  interest  of  the  party. —  "Where  the  suit 
is  brought  by  a  husband  and  wife,  the  petition  must  show  on  its 
face  the  interest  of  the  wife.2 

i  Dodson  v.  Scroggs,  74  Ma  285.  2Haile  v.  Palmer,  5  Ma  403. 


CHAPTER  XII. 


THE  PETITION  — MULTIFARIOUSNESS. 


§  234.  Is  a  defect  under  the  Code. 

255.  Multifariousness  defined. 

256.  The  provision  of  the  statute. 

257.  The  limits  of  the  rule. 


§  259.  The  averments  are  to  be  looked 
to,  not  the  prayer. 

260.  Who  may  raise  the  objection. 

261.  Cases  illustrating  the  above 

rules. 


§  254.  Is  a  defect  under  the  Code. —  Multifariousness  is  a  de- 
fect in  pleading  which  has  not  been  removed  by  the  practice  act.1 

§  255.  Multifariousness  defined. —  It  is  impracticable  to  lay- 
down  any  general  rule  as  to  what  constitutes  multifariousness 
as  an  abstract  proposition,  but  each  case  must  be  determined  by 
its  own  circumstances.  Yet  there  are  certain  general  rules  which 
are  well  defined,  though  on  account  of  the  intricacy  of  the  facts 
it  is  not  always  easy  to  apply  them.  It  is  said  in  Stalcup  v.  Gar- 
ner2 that  "there  are  two  kinds  of  multifariousness:  first,  where 
several  distinct  claims  against  the  same  defendant  are  combined 
in  one  suit,  which  is  called  a  misjoinder  of  claims;  secondly,  where 
different  matters,  having  no  connection  with  each  other,  are  joined 
in  a  bill  against  several  defendants,  a  part  of  whom  have  no  in- 
terest in  or  connection  with  some  of  the  distinct  matters  for  which 
the  suit  is  brought;  so  that  such  defendants  are  put  to  the  un- 
necessary trouble  and  expense  of  answering  and  litigating  mat- 
ters stated  in  the  bill,  in  which  they  are  not  interested  and  with 
which  they  have  no  connection."  (p.  73.)  And  again,  that  multi- 
fariousness is  the  joining  in  one  petition  of  distinct  and  independ- 
ent matters,  each  of  which  would  constitute  a  cause  of  action.3 
But  more  properly  speaking,  a  petition  is  multifarious  where  va- 
rious matters  having  no  connection  with  each  other  and  against 
several  defendants  are  joined,  part  of  the  defendants  having  no 
interest  in  or  connection  with  some  of  the  distinct  matters  for 
which  the  suit  is  brought.4     In  another  case  the  supreme  court 


1  Alexander  v.  Warrance,  17  Ma  228; 
McQueen  v.  Chouteau,  20  Mo.  229; 
Doan  v.  Holly,  25  Mo.  357;  Stalcup  v. 
Garner,  26  Mo.  72. 


2  26  Mo.  72. 

3  McGlothlin  v.  Hemery,  44  Mo.  350. 
*Mayberry  v.  McClurg,  51  Mo.  256. 


§  256.]  MULTIFARIOUSNESS.  149 

says  that  a  bill  is  multifarious  when  distinct  and  independent 
matters  are  improperly  joined,  whereby  they  are  confounded,  as 
the  uniting  in  one  bill  of  several  matters  perfectly  distinct  and 
unconnected  against  one  defendant,  or  the  demand  of  several 
matters  of  a  distinct  and  independent  nature  against  several  de- 
fendants in  the  same  bill.1  If  a  cause  of  action  against  A  alone 
is  joined  with  a  cause  of  action  against  A  and  B,  the  petition  is 
multifarious.2  Therefore  a  bill  will  not  lie  against  two  defend- 
ants to  set  aside  two  deeds  of  trust,  one  of  which  is  executed  by 
both  of  the  defendants  and  the  other  by  only  one  of  them.3  And 
the  case  holds  that  this  defect  will  not  be  cured  by  dismissing  as 
to  the  party  who  did  not  execute  the  mortgage  mentioned  in  the 
second  count,  if  such  party  did  execute  the  one  mentioned  in  the 
first  count,  because  he  was  a  necessary  party  to  a  suit  seeking  to 
annul  that  mortgage.  Mere  redundant  or  irrelevant  matter,  which 
may  be  stricken  out  on  motion,  does  not  render  a  bill  multifa- 
rious.4 

§  256.  The  provision  of  the  statute. —  The  statute  expressly 
provides  that  where  different  causes  of  action  are  united  in  the 
same  petition  they  must  affect  all  the  parties  to  the  action.5  In 
Liney  v.  Martin*  there  were  two  plaintiffs.  The  suit  was  based, 
so  far  as  one  plaintiff  was  concerned,  upon  an  alleged  collusion 
between  one  JSTewcomb,  deceased,  who  was  plaintiff's  former 
husband,  and  the  defendant  Martin,  with  the  intent  to  defraud 
such  plaintiff  of  her  dower  interest  in  the  real  estate  mentioned 
in  the  petition,  and  charging  that  the  fraud  was  consummated 
by  a  pretended  conveyance  of  the  lands  to  the  defendant.  So 
far  as  the  suit  respected  the  other  plaintiff,  who  was  the  minor 
heir  of  the  said  Newcomb,  it  was  founded  upon  a  charge  that 
the  same  land  was  held  by  defendant  Martin  in  trust  for  said 
Newcomb  in  his  life-time;  that  at  his  death  it  descended  to  this 
plaintiff  as  his  heir;  that  in  fraud  and  violation  of  the  trust  de- 
fendant sold  one  of  the  tracts,  and  still  holds  the  other  under 
the  fraudulent  conveyance.  It  thus  appeared  that  there  was  a 
suit  in  behalf  of  the  latter  plaintiff  based  upon  the  ground  of  a 
trust,  created  and  arising  out  of  a  conveyance,  which,  to  author- 
ize a  recovery,  must  be  presumed  to  be  valid  and  untainted  with 

1  Clark  v.  Covenant  Mut  Life  Ins.  4  McGlothlin  v.  Hemery,  44  Mo.  350. 
Co.,  52  Mo.  272.  » Rev.  Stat.  1899,  sec  593;  Doan  v. 

2  Doan  v.  Holly,  25  Mo.  357;  S.  G,  26  Holly,  25  Mo.  357. 
Mo.  136.  e  29  Mo.  28. 

3  Jamison  v.  Culligan,  151  Mo.  410. 


150  TIIE   TETITION.  [§  257. 

fraud,  and  that  it  could  not,  therefore,  be  joined  with  a  cause  of 
action  arising  out  of  a  transaction  alleged  to  be  fraudulent  and 
based  distinctly  on  that  ground,  which  was  the  case  of  the  first 
plaintiff.  The  petition  was  therefore  held  bad.  It  is  also  held 
that  a  cause  of  action  against  A  alone  cannot  be  joined  in  the 
same  petition  with  a  cause  of  action  against  B.1  A  landlord 
cannot  maintain  a  joint  action  for  rent  against  his  tenant  and 
for  conversion  against  another  person,  who,  with  knowledge  of 
the  lien  rights  of  the  landlord,  has  bought  the  crop  from  the 
tenant  and  disposed  of  it.2  "Where  a  bill  is  filed  by  a  judgment 
creditor  to  set  aside  certain  mortgages  on  the  ground  that  they 
were  fraudulent  as  to  creditors,  the  joining  of  a  party  as  defend- 
ant who  had  no  connection  with  the  alleged  fraudulent  transac- 
tion between  his  co-defendants,  and  who  has  no  interest  in  the 
mortgaged  property,  makes  the  bill  multifarious.3  So,  too,  a  bill 
is  multifarious  if  a  claim  against  directors  as  such  is  included 
with  a  claim  against  them  and  others  as  stockholders.4 

§  257.  The  limits  of  the  rule. —  A  bill  in  equity  is  not  multi- 
farious unless  distinct  and  independent  matters  are  united  therein.5 
Distinct  facts,  forming  a  series  of  transactions  tending  to  one 
common  end,  and  all  necessary  to  the  plaintiff's  equity,  do  not, 
when  contained  in  a  petition,  make  such  petition  multifarious.& 
And  a  petition  setting  forth  several  matters  which  are  parts  of 
the  same  transaction,  in  which  all  the  defendants  participate, 
and  in  the  result  of  which  all  are  interested,  is  not  multifarious.7 
Nor  is  a  bill  to  establish  against  several  persons  demands  which 
are  similar,  based  upon  the  same  facts,  and  growing  out  of,  and 
depending  upon,  the  same  principles.8  A  bill  which  seeks  an  ac- 
count for  rents  and  profits  of  real  estate  and  an  account  of  per- 

1  Stalcup  v.  Garner,  26  Mo.  72.  prayed  a  judgment  for  $10,000  against 

2  Phillips  v.  Flynn,  71  Mo.  424  the    president    of  the    company  for 

3  Wilkinson  v.  Goodin,  71  App.  394.  money  wrongfully    appropriated   by 

4  Montserrat  Coal  Co.  v.  Johnson  him,  and  for  a  judgment  against  him 
County  Mining  Co.,  141  Mo.  149.  This  for  whatever  balance  of  said  $60,000 
case  was  one  where  plaintiff  brought  should  be  unpaid  after  the  other  two 
suit  against  a  corporation  alleging  its  sources  should  be  exhausted.  The  bill 
insolvency,  and  that  he  had  recovered  also  contained  a  prayer  for  damages 
judgment  against  it  for  $60,000,  and  for  waste  and  wanton  destruction  of 
prayed  that  the  other  defendants,  the  mine,  which  the  corporation  had 
who  were  stockholders  in  the  com-  leased  from  plaintiff. 

pany,  be  decreed  to  pay  $95  per  share  5Lindley  v.  Russell,  16  App.  217. 

on    each  share    of  stock  owned  by  6  McGlothlin  v.  Hemery,  44  Mo.  350. 

them,  because  they  had  never  paid  7  Mayberry  v.  McClurg,  51  Mo.  256. 

but  $5  on  each  share.    The  bill  also  8  Martin  v.  Martin,  13  Mo.  36. 


§§  258,  259.]  MULTIFARIOUSNESS.  151 

sonal  estate  is  not  multifarious.1  "Where  three  parties,  each 
owning  an  estate  in  severalty,  file  a  bill  having  a  common  ob- 
ject, viz.,  the  removal  of  defendant  from  a  trust  pertaining  to 
such  estates,  the  plaintiffs  having  a  common  ground  upon  which 
they  seek  that  object,  and  defendant's  conduct  toward  the  sev- 
eral plaintiffs  and  their  property,  and  his  relations  with  them, 
having  been  the  same,  such  bill  filed  jointly  by  them  is  not  mul- 
tifarious.2 All  the  persons  who  have  a  common  cause  of  action 
and  a  common  ground  of  relief  against  the  defendant  may  join 
in  the  same  bill.3 

§  258.  If  plaintiff  bases  his  claim  to  equitable  relief  against 
several  defendants  on  one  general  right,  the  petition  is  not  mul- 
tifarious, though  the  defendants  may  have  separate  and  distinct 
defenses;  as,  where  plaintiff  sought  to  have  certain  conveyances 
set  aside  as  being  in  fraud  of  creditors.4  And  if  a  debtor  con- 
veys land  in  fraud  of  creditors,  and  the  title  passes  by  different 
deeds  to  different  persons,  all  such  persons  may  be  joined  as  de- 
fendants in  a  suit  to  set  aside  the  deeds,  as  they  all  have  a  com- 
mon interest  in  respect  to  the  fraud.  In  such  case  the  bill  should 
be  framed  in  one  count  as  one  cause  of  action.5  But  it  seems 
that  the  bill  must  show  a  common  purpose  or  design  on  the  part 
of  all  the  defendants.6  The  objection  that  the  bill  is  multi- 
farious will  not  hold  where  the  gravamen  of  fraud  or  wrong  in 
the  sales  is  the  same,  and  equally  applies  to  all,  notwithstand- 
ing that  the  defendants  claim  the  land  under  distinct  and  sep- 
arate sales  of  different  parcels  thereof  to  them  separately.7  And 
the  same  principle  is  announced  in  a  much  later  case,  where 
plaintiffs,  as  heirs  of  one  Boggess,  filed  a  bill  to  set  aside  two 
separate  deeds,  made  to  different  persons  and  at  different  times 
by  their  ancestors,  alleging  that  both  deeds  were  made  while  the 
grantor  was  so  feeble  in  health  and  his  mind  was  so  impaired 
that  he  was  incapable  of  transacting  business.8 

§  259.  The  averments  are  to  be  looked  to,  not  the  prayer.— 
Whether  or  not  a  petition  is  multifarious  is  to  be  determined  not 
from  the  prayer,  but  from  the  allegations  contained  in  it.9 

1  Rubey  v.  Barnett,  12  Mo.  3.  7  Bobb  v.  Bobb,  76  Mo.  419,  the  de- 

2  Gartside  v.  Gartside,  113  Mo.  348.    cision  of  the  court  of  appeals  on  this 
3 Michael  v.  St  Louis,  112  Mo.  610;    point  (8  App.  257)  being  reversed. 

Gartside  v.  Gartside,  113  Mo.  348.  8  Boggess  v.   Boggess,  127  Mo.  30.3. 

4  Donovan  v.  Dunning,  69  Mo.  436;  And  an  earlier  case  in  which  the  prin- 

Rinehart  v.  Long,  95  Mo.  396.  ciple  is  recognized  is  that  of  Barr  v. 

»  Rinehart  v.  Long,  95  Mo.  396.  Cubbage.  52  Mo.  404. 

«  Mullen  v.  Hewitt,  103  Mo.  639,  652.  9  Davenport  v.  Murray,  68  Mo.  198. 


152  THE  PETITION.  [§§200,201. 

§  260.  "Who  may  raise  the  objection. —  If  there  is  any  defend- 
ant as  to  whom  the  bill  is  not  multifarious,  such  defendant  or  de- 
fendants  cannot  raise  the  objection.  It  can  be  raised  only  by  a 
defendant  who  is  improperly  joined.1 

§  261.  Gases  illustrating;  the  above  rules. —  A,  having  an  in- 
terest in  the  estate  of  B,  conveyed  it  by  deed  to  C  as  security. 
The  deed  was  lost,  and  C,  after  the  death  of  A,  had  his  demand 
allowed  against  A's  estate,  and  then  filed  his  bill  against  the  ad- 
ministrator of  A,  and  of  B,  and  the  heirs  of  B.  It  was  held 
that  the  bill  was  multifarious  in  joining  the  administrator  of  A, 
who  had  no  interest  in  the  proceeding  against  the  administrator 
and  heirs  of  B.2  A  petition  to  establish  a  debt  against  the  estate 
of  an  intestate,  and  at  the  same  time  to  charge  lands  in  the 
hands  of  a  third  party  on  the  ground  that  they  had  been  con- 
veyed by  the  intestate  in  fraud  of  creditors,  is  multifarious.3  So, 
too,  a  bill  against  a  judgment  debtor  and  the  grantees  in  a  num- 
ber of  separate  deeds  alleging  that  they  were  each  made  to  cover 
up  the  defendant's  interest  in  the  property  described  therein  and 
to  prevent  the  collection  of  plaintiff's  judgment,  but  showing  no 
common  purpose  or  design,  is  multifarious.4  And  where  A  filed 
a  bill  charging  that  he  had  purchased  a  tract  of  land  at  an  ex- 
ecution sale  issued  by  the  clerk  of  the  circuit  court  upon  a 
transcript  of  a  judgment  of  a  justice;  that  the  defendant  in  the 
execution  had  previously  conveyed  the  land  to  B ;  that  the  deed 
to  B  was  fraudulent  and  void  as  to  creditors,  and  was,  though 
absolute  upon  its  face,  in  fact  a  mortgage,  the  bill  was  multifa- 
rious in  charging  that  the  deed  was  a  mortgage,  and  also  fraudu- 
lent and  void.5  But  where  it  is  sought  in  the  same  proceeding  to 
set  aside  an  allowance  of  certain  claims  against  an  estate  in 
favor  of  two  persons,  and  also  to  set  aside  certain  orders  of  sale 
of  the  real  estate  and  the  deeds  to  one  of  said  parties  under  such 
sale  on  the  ground  of  fraud,  the  petition  is  not  multifarious.6  And 
where  children  take  lands  as  tenants  in  common,  a  petition  which 
joins  all  those  living  and  the  heir  of  one  deceased  as  parties 
defendant  in  a  suit  for  partition  is  not  multifarious,  though  some 
of  the  tenants  have  purchased  the  interests  of  the  others,  such 
purchase  not  conferring  an  exclusive  right  to  any  portion  of  the 

iBoggess  v.  Boggess,  127  Mo.   305,  « Mullen  v.   Hewett,    103   Mo.    639. 

321  Compare  Rinehart  v.   Long,  95  Mo. 

2  Berry  v.  Robinson,  9  Mo.  276.     See,  396. 

however,  Rubey  v.  Barnett,  12  Mo.  3.  5  Jones  v.  Paul,  9  Mo.  290. 

sCheely  v.  Wells,  33  Mo.  106.  «Mayberry  v.  McClurg,  51  Mo.  256. 


§  262.]  MULTIFARIOUSNESS.  153 

land.1  And  if,  in  such  a  suit,  the  general  right  to  the  whole 
land  is  being  litigated,  the  fact  that  the  parties  to  the  suit  rely 
upon  distinct  and  independent  rights  does  not  make  the  petition 
therein  multifarious.1  A  suit  against  a  trustee  for  the  legal  title 
of  the  trust  property,  and  against  the  administrator  on  a  demand 
growing  out  of  the  property,  cannot  be  joined.2  By  the  terms 
of  a  will  the  rents  of  certain  real  estate  devised  to  a  trustee  were 
to  be  divided  between  certain  persons  named  until  the  property 
should  be  sold,  when  the  proceeds  of  the  sale  were  to  be  divided 
among  these  and  several  other  persons.  A  suit  was  brought  to 
compel  the  trustee  to  account  for  rents  collected  and  not  paid 
over,  to  secure  the  removal  of  the  trustee  and  the  appointment 
of  a  successor,  and  to  have  the  trust  property  sold  and  the  pro- 
ceeds divided.  It  was  held  that  all  the  beneficiaries  under  the 
will  were  proper  parties,  notwithstanding  that  some  of  them  had 
no  interest  in  part  of  the  relief  sought,  viz.,  the  accounting  for 
rents  collected ;  and  further,  that  a  petition  seeking  such  relief 
was  not  multifarious  as  to  the  latter  class  of  plaintiffs.3  A  peti- 
tion by  infants,  to  whom  slaves  had  been  devised  in  trust,  pray- 
ing for  the  appointment  of  a  new  trustee,  and  also  that  certain 
parties  who  were  charged  with  having  wrongfully  appropriated 
the  services  of  such  slaves  might  account  to  the  new  trustee,  is 
not  multifarious.4  Nor  is  a  petition  in  partition  multifarious 
because  it  seeks  to  enforce  against  a  third  person  a  trust  in  the 
portion  of  the  land  claimed  by  plaintiffs.5 

§  262.  Further  illustrations. —  Where  the  petition  set  forth 
that  A  conveyed  a  certain  tract  of  land  to  B,  and  by  mistake 
misdescribed  it,  and  that  B  conveyed  the  same  to  C,  and  also, 
by  mistake,  misdescribed  it,  and  there  was  a  prayer  for  the  cor- 
rection of  both  deeds,  the  petition  was  multifarious.6  A  and  B, 
by  threats,  extorted  from  C  the  transfer  to  themselves  of  a 
certain  tract  of  land  owned  by  the  latter,  one  portion  thereof 
being  conveyed  to  A  and  the  other  to  B;  A  conveyed  his  portion 
to  D,  who  took  with  notice.  C  instituted  an  action  against  A, 
B  and  D  to  obtain  an  annulment  of  the  deeds,  and  such  joinder 
did  not  make  the  petition  multifarious.7  "Where  a  person  in  an- 
ticipation of  death,  and  with  a  view  to  defraud  his  widow  of  her 
dower,  executed  separate  deeds  of  gift  of  slaves  to  his  children, 

i  Waddell  v.  Waddell,  99  Mo.  338.  *  Temple  v.  Price,  24  Mo.  288. 

2  McLaughlin    v.    McLaughlin,    16  8Budde  v.  Rebenack,  137  Mo.  179. 
Mo.  242.  e  Stalcup  v.  Garner,  26  Mo.  72. 

3  Goodwin  v.  Goodwin,  69  Mo.  617.  '  Bray  v.  Thatcher,  28  Mo.  129. 


154  THE   PETITION.  [_§  262. 

a  petition  in  a  suit  by  the  widow  against  all  the  grantees  in  said 
deeds,  to  obtain  an  annulment  thereof  and  an  assignment  of 
dower,  will  not  be  multifarious.1  A  petition  for  the  conveyance 
of  Land  and  possession  thereof,  and  for  the  rents  and  profits,  is 
not  multifarious.2  A  bill  in  equity  for  specific  performance  of 
a  contract  for  the  sale  of  land,  which  charges  first  that  the  land 
was  paid  for  in  money,  then  that  it  was  paid  for  in  hogs,  and 
that  defendant  obtained  possession  of  the  land  by  collusion  with 
a  third  person,  without  making  such  person  a  party,  is  multi- 
farious.3 A  delivered  certain  certificates  of  stock  in  different 
insurance  companies  to  the  complainant,  and  agreed,  under  seal, 
that  upon  the  happening  of  a  specified  contingency  the  stock 
should  become  the  absolute  property  of  the  complainant.  Sub- 
sequently the  same  stock  was  sold  on  execution  against  A,  as 
his  property,  to  various  purchasers.  A  bill,  in  which  the  sev- 
eral insurance  companies  and  the  several  purchasers  at  the  sher- 
iff's sale  were  joined  as  defendants,  and  the  object  of  which  was 
to  compel  a  transfer  of  stock  on  the  books  of  the  several  com- 
panies to  the  complainant,  was  held  to  be  multifarious.4 

1  Tucker  v.  Tucker,  29  Ma  350.  3  Wilkson  v.  Blackwell,  4  Mo.  428. 

2  Duvall  v.  Tinsley,  54  Ma  93;  Kelly        4  Ferguson  v.  Paschall,  11  Mo.  267. 
v.  Hurt,  Gl  Ma  463. 


CHAPTER  XIII. 

THE  PETITION  — STATING  THE  CAUSE  OF  ACTION. 


§  263. 

Facts  should  be  stated. 

§  282. 

Exceptions  to  the  rule  as  to 

264. 

Mode  of  stating  the  facts. 

proving    unnecessary    aver- 

265. 

Waiving  a  tort. 

ments. 

266. 

Form  and  substance. 

283. 

The  allegations  of  the  petition 

267. 

Must  show  a  cause  of  action  at 

must  be  taken  together. 

time  of  commencing  suit. 

284 

Its  averments  must  be  consist- 

268. 

Certainty. 

ent. 

269. 

Answer  may  supplement  peti- 

285. 

Pleading  the  legal  effect. 

tion. 

286. 

Anticipating  defense. 

270. 

What  facts  are  constitutive. 

287. 

The    question  of  anticipating 

271. 

Facts  raised  by  legal  implica- 

the defense  considered  in  ad- 

tion. 

judged  cases. 

272. 

The  ad  damnum  clause. 

293. 

Negativing  affirmative  matter. 

273. 

Stating  jurisdictional  facts. 

294 

Further    illustrations    of    the 

274 

Where  the  cause  of  action  is  a 

rule. 

statutory  one. 

295. 

Provisos  and  exceptions. 

276. 

Facts     inferable    from    facts 

297. 

Where  there  is  a  condition  pre- 

stated. 

cedent. 

277. 

The  test  of  sufficiency. 

298. 

Where  there  are  two  covenants. 

278. 

Making     unnecessary    aver- 

299. 

Cases  illustrating  the  rule  as  to 

ments. 

pleading  a  condition. 

279. 

The  rule  illustrated. 

305. 

The  rule  applied  to  new  mat- 
ter in  an  answer. 

§  263.  Facts  should  be  stated.1  — In  Farley  v.  St.  Louis,  K. 
G.  (&  No.  R.  Co.,2  it  is  said  that  it  is  not  at  all  necessary  that  the 
petition  should  state  a  cause  of  action,  but  only  facts  sufficient 
to  constitute  a  cause  of  action ;  if  the  petition,  however  bung- 
lingly  drawn,  contains  the  facts  which  make  a  cause  of  action, 
it  is  not  obnoxious  to  the  attack  of  a  general  demurrer  or  a  mo- 
tion in  arrest,  nor  can  it  be  attacked  for  the  first  time  in  an  ap- 
pellate court,  (p.  3M).3  The  statute  provides  that  the  petition 
must  contain  a  plain  and  concise  statement  of  the  facts  con- 


1  Un<!er  chapters  IV  to  VII,  inclu- 
sive, will  be  found  many  decisions  re- 
lating to  this  subject,  the  stating  of  a 
cause  of  action  in  a  petition.  And 
those  chapters  should  be  consulted  in 
connection  with  the  present  chapter. 


2  72  Mo.  338. 

3  And  this  statement  is  again  made 
in  a  later  case.  Alexander  v.  Camp- 
bell, 74  Mo.  142,  144 


156  THE    PETITION.  [§  264. 

stituting  the  cause  of  action,  without  unnecessary  repetition.1 
Under  the  Missouri  Code  there  is  but  one  form  for  a  civil  action,2 
and  the  petition  need,  only  set  out  the  facts  constituting  the 
cause  of  action,3  whether  such  facts  authorize  legal  or  equitable 
relief.4  Plaintiff  should  state  the  facts,  and  his  ground  of  com- 
plaint arising  on  the  facts.5  And  it  must  be  borne  in  mind  that 
the  petition  must  state  facts,  and  not  the  conclusions  of  the 
pleader  from  the  facts.6  Only  the  constitutive  facts  entitling 
the  party  to  relief  should  be  stated ; 7  and  if  these  averments  in- 
clude everything  material  to  the  plaintiff's  cause  of  action  this  is 
sufficient.8  The  cause  of  action  can  be  ascertained  only  by  the 
allegations  of  the  petition,9  and  the  facts  constituting  the  cause 
of  action  and.  the  kind  of  relief  sought  must  be  set  forth  with 
precision.10 

§  264.  Mode  of  stating  the  facts. —  The  facts  need  not  be  so 
stated  as  to  show  a  right  of  recovery  in  any  of  the  common-law 
forms  of  action.11  But  plaintiff  must  take  care  to  state  the  facts 
as  they  exist.  If  goods  have  been  taken  under  circumstances 
which  constitute  a  trespass,  there  can  be  no  recovery  on  a  peti- 
tion for  goods  sold  and  delivered.12  But  plaintiff  need  only  state 
his  cause  of  action  in  ordinary  and  concise  language,  whether 
the  action  be  in  assumpsit,  trover,  trespass  or  ejectment,  without 
regard  to  the  ancient  forms.13  A  petition  which  contains  a  nar- 
rative of  the  facts  of  plaintiff's  case,  and  of  the  wrongs  and 
grievances  of  which  he  complains,  with  reasonable  minuteness, 
is  sufficient.14  Section  60i l5  permits  a  defendant  to  enter  a  denial 
of  the  allegations  of  the  petition  by  asserting  that  he  has  no 
knowledge  nor  information  thereof  sufficient  to  form  a  belief; 
but,  except  in  case  of  alternative  pleading  under  the  provisions 
of  section  626,15  such  an  averment  is  not  good  in  a  petition.16     A 

1  Rev.  Stat.  1899,  sec.  592.  unnecessarily  restrict  the  issues,  the 

2  Rev.  Stat.  1899,  sec.  539.  plaintiff  may  be  confined  to  the  limited 
a  Clark  v.  Clark,  86  Mo.  114;  Knip-    issues.     See  §  282,  post 

per  v.  Blumenthal,  107  Mo.  665.  9  Thrush  v.  Cameron,  21  App.  394; 

4  Clark  v.  Clark,  86  Mo.  114  Russell  v.  McCartney,  21  App.  544. 

5  Ensworth  v.  Barton,  60  Mo.  511.  .  10  Bankston  v.  Farris,  26  Mo.  175. 

6  Brown  v.  Cape  Girardeau,  90  Mo.  "  Ahern  v.  Collins,  39  Mo.  145. 

377.    That  it  is  improper  in  a  pleading  12  Link  v.  Vaughan,  17  Mo.  585.    See 

to  state  conclusions  of  law,  see  chap-  the  next  section. 

ter  VIL  13  Maguire  v.  Tyler,  47  Mo.  115. 

"  Van  Hoozer  v.  Van  Hoozer,  18  App.  14  Mayberry  v.  McClurg,  51  Mo.  256. 

19.  15  Rev.  Stat.  1899. 

8  McNees  v.  Mo.  Pac.  R.  Co.,  22  App.  16  Citizens'  Bank  v.  Tiger  Tail  Mill  & 

224.     If  the  averments  of  the  petition  Land  Co.,  152  Mo.  145. 


§§  265-268.]  STATING    CAUSE   OF   ACTION.  157 

mere  allegation  that  defendant  is  informed  and  believes  that  a 
judgment  debtor  transferred  his  property  to  another  for  the 
purpose  of  defrauding  and  delaying  his  creditors  is  not  a  suffi- 
cient allegation  on  which  to  base  a  cause  of  action.1 

§  265.  Waiving  a  tort. —  In  an  early  decision  it  was  held  that 
the  Code  does  not  authorize  a  person  whose  chattels  had  been 
taken  away  by  a  trespasser,  or  converted  by  a  bailee,  to  waive 
the  wrong  and  charge  such  person  as  a  purchaser  of  the  chattels.2 
But  this  ruling  has  not  been  followed,  and  the  doctrine  is  now 
clearly  recognized  in  this  state  that  a  plaintiff  has  the  right  to 
found  his  cause  of  action  on  the  wrong,  or  to  waive  the  wrong 
and  sue  as  on  an  implied  contract.3  This  question  most  fre- 
quently arises  in  connection  with  a  counter-claim,  and  the  reader 
is  referred  to  chapter  XXIY,  where  many  additional  cases  are 
cited  in  discussing  that  question.4 

§266.  Form  and  substance. —  "While  the  use  of  formal  and 
technical  averments,  which  were  necessary  at  common  law  to  the 
statement  of  a  cause  of  action,  have  been  dispensed  with  by  the 
Code  and  are  no  longer  necessary,  the  same  material  allegations 
are  necessary  as  at  common  law.5 

§  267.  Must  show  a  cause  of  action  at  time  of  commencing 
suit. —  The  petition  must  state  a  cause  of  action  which  accrued 
prior  to  the  commencement  of  the  action.6  And  it  will  not  sup- 
port a  recovery  if  the  facts  stated,  though  true,  do  not  show 
that  the  plaintiff  had  a  subsisting  cause  of  action  at  the  date  the 
suit  was  instituted.7  But  an  amended  petition  may  set  forth 
facts  occurring  after  the  filing  of  the  original  petition,  if  the 
facts  so  averred  are  such  as  tend  to  strengthen  and  reinforce  the 
original  cause  of  action,  and  are  of  the  same  kind  and  cognate  to 
those  constituting  the  cause  of  action.8 

§  268.  Certainty. —  The  rule  that  the  constitutive  facts  and 
the  relief  sought  should  be  set  forth  with  precision  is  a  funda- 
mental one,  which  is  recognized,  without  being  expressly  stated, 
in  Banhston  v.  Farris?  The  rule  requiring  certainty  in  a  peti- 
tion is  for  two  purposes:   First,  that  the  adversary  may  know 

i  Nichols-Shepard  Co.  v.  Hubert,  150        5  Citizens'  Bank  v.  Tiger  Tail  Mill  & 

Mo.  620.  Land  Co.,  152  Mo.  145. 

2  Link  v.  Vaughn,  17  Mo.  585.  *  Brown  v.  Shock,  27  App.  351. 

3  Horine  v.  Bone,  69  App.  481.  It  is  7  Minor  v.  Rogers  Coal  Co.,  25  App.  78. 
to  be  regretted  that  the  earlier  ruling  8  Alfter  v.  Hammitt,  54  App.  303. 
has  not  been  adhered  to.  See  also  gg  318,  627, 671  and  767, post. 

4  See  §§  666-668,  post.  9  '-'6  Mo.  1 75. 


158  THE  PETITION.  [§§  269,  270. 

exactly  what  be  is  charged  with;  second,  that  any  judgment  ren- 
dered on  the  petitioD  may  be  such  as  can  be  pleaded  by  the  de- 
fendant in  bar  of  any  subsequent  suit  for  the  same  cause  of  action. 
If  the  petition  is  certain  to  such  an  extent  as  to  accomplish  these 
two  purposes,  it  is  sufficiently  certain  within  the  rule.1  A  plead- 
ing will  not  be  held  bad,  at  least  after  verdict,  by  reason  of  the 
fact  that  an  amount  of  money  is  not  expressed  in  words,  but  in 
figures  preceded  by  the  dollar  sign  and  with  the  last  two  figures 
cut  off  by  a  dot  to  indicate  cents.2 

§  '209.  Answer  may  supplement  petition. —  Where  the  aver- 
ments of  the  answer  are  such  as  to  supply  the  defects  in  the  peti- 
tion, such  an  answer  in  effect  fills  the  purpose  of  an  amended 
petition.3 

§  270.  What  facts  are  constitutive. —  Every  fact  which  the 
plaintiff  must  prove  to  maintain  his  suit  is  constitutive  in  the 
sense  of  the  Code,  and  must  be  alleged.4  Every  fact  of  that 
character  must  be  alleged,  and  so  alleged  that  an  issue  may  be 
made  upon  it.5  Plaintiff  need  only  allege  such  facts  as  he  is 
bound  to  prove  in  order  to  make  out  his  case  in  the  first  instance.6 
Whatever  is  the  real  ground  of  complaint  ought  to  be  distinctly 
stated.7  If,  however,  enough  is  contained  in  the  allegations  of 
the  petition  to  show  that  plaintiff  has  a  cause  of  action,  the  peti- 
tion will  be  held  good  after  verdict.8  And  while  the  Code  re- 
quires only  the  statement  of  the  facts  constituting  the  cause  of 
action,  and  not  of  evidential  facts,  yet  when  the  petition  purports 
to  state  all  the  evidential  facts  upon  which  the  cause  of  action  is 
grounded,  it  must  so  state  them  as  to  show  a  cause  of  action  in 
the  plaintiff.9  The  rule  at  common  law  was  that  matters  of 
aggravation  did  not  constitute  a  part  of  the  cause  of  action  and 

1  It  is  unnecessary  to  cite  authorities  man  v.  Phoenix  Ins.  Co.,  49  App.  604; 

on  this  point,  since  the  rule  is  applied  Harrison  v.  Kansas  City,  C.  &  S.  R.  Co., 

under  almost  every  head  of  this  chap-  50   App.   332;    Benedict  Mfg.   Co.   v. 

ter.  Jones,  60  App.  219;  Rogers  v.  McCraw, 

-  Fulenwider  v.  Fulen  wider,  53  Mo.  61  App.  407;  Story  v.  American  Cen- 

439.    See  also  §  38,  ante.  tral  Ins.  Co.,  61  App.  534. 

3  Allen  v.   Chouteau,   102  Mo.   309.  6  Crane  v.  Mo.  Pac.  R.  Co.,  87  Mo.  588. 

The    subject  of  curing    a  defective  7  Edens  v.  Hannibal  &  St.  J.  R  Co., 

pleading  by  the  pleading  of  the  ad-  72  Mo.  212. 

versary  will  be  considered  in  chapter  8  Corpenny  v.  Sedalia,  57  Mo.  88. 

XXXVIL  »  Bank  of  Little  Rock  v.  Fisher,  55 

*  Pier  v.  Heinrichoffen,  52  Mo.  333.  App.  5L 

5Lanitz  v.  King,  93  Mo.  513;  Beck- 


§§  271,  272.]  STATING   CAUSE   OF   ACTION.  159 

need  not  be  specially  pleaded ;  and  the  rule  is  the  same  under 
the  Code.1 

§  271.  Facts  raised  by  legal  implication. — Facts  raised  merely 
by  legal  implication  cannot,  under  our  system  of  pleading,  be 
considered  constitutive  facts  necessary  to  be  averred  in  order  to 
state  a  cause  of  action.2  Such  constitutive  facts  are  the  actualities 
of  the  transaction.  A  legal  implication  from  those  actualities  of 
other  facts  may  authorize  the  use  of  such  implied  facts  to  defeat  a 
recovery,  but  it  cannot  be  essential  to  the  statement  of  the  cause  of 
action,  which  arises,  if  at  all,  upon  the  statement  of  the  actual  facts.3 
If  the  contract  relied  on  by  plaintiff  is  express,  it  must  be  so  pleaded, 
and  the  terms  of  the  contract  must  be  substantially  set  out.  But 
if  the  contract  is  implied,  the  facts  out  of  which  it  is  claimed  to 
arise  should  be  pleaded,  and  it  is  then  proper  that  the  plaintiff, 
after  stating  the  facts,  should  draw  the  conclusion  that  the 
contract  was  implied  from  them.4  A  case  containing  a  plead- 
ing which  violates  the  above  rules  is  that  of  Garner  v.  McCul- 
lough?  There  the  petition  averred  as  follows:  "That  plaintiff, 
in  virtue  of  a  contract  with  one  E.,  was  entitled  to  the  exclusive 
possession  of  certain  premises;  that  the  premises,  subsequently 
to  the  making  of  the  contract,  were  purchased  by  the  defendant 
with  a  knowledge  of  the  plaintiff's  rights,  and  that  the  defendant 
forcibly  took  possession  of  the  premises  and  excluded  the  plaint- 
iff." It  will  be  seen  that  the  petition  utterly  fails  to  show  who 
E.  was,  and  what  his  relation  to  the  premises  was;  and  it  also 
fails  to  show  the  nature  of  the  alleged  contract.  Moreover  it 
does  not  aver  that  plaintiff  was  ever  in  possession  of  the  premises, 
or  that  the  defendant's  acts  were  wrongful,  and  the  contract 
with  E.  is  not  set  out  either  in  substance  or  in  its  legal  effect.  It 
is  averred  that  plaintiff  was  entitled  to  the  exclusive  possession 
of  the  premises.  But  that  states  a  mere  conclusion  of  law.  The 
defendant's  motion  to  exclude  all  evidence  offered  by  plaintiff  was 
rightly  sustained. 

§  272.  The  ad  damnum  clause. —  Under  the  Code  a  petition 
is  not  defective  because  it  does  not  contain  an  ad  damnum  clause, 

1  Pierce  v.  Carpenter,  65  App.  191.        pleading  an  implied  promise.   But  this 

2  This  does  not  mean  that  the  court  exception  is  fully  discussed  elsewhere, 
may  not  draw  certain  inferences  of    See  §  343,  post. 

fact  from  the  facts  actually  stated;  3  Duff  v.  Fire  Ass'n,  129  Mo.  460. 

but  this  subject  is  more  fully  discussed  4Wetmore  v.  Crouch,  150  Mo.  671. 

in  section  276,  post.  As  to  pleading  an  implied  promise 

The  courts  of  this  state  have  not  ad-  see  §  343. 

hered  to  this  rule  in  the  matter  of  5  48  Mo.  318. 


160  THE    PETITION.  [§  273. 

though  under  the  old  system  it  was  perhaps  a  prerequisite*  to  a 
judgment  that  the  declaration  should  contain  an  allegation  that 
the  complainant  had  thereby  been  damaged,  with  a  prayer 
for  judgment  for  the  amount  of  such  damage.  But  as  the  Code 
requires  only  a  plain  and  concise  statement  of  facts,  with  a  de- 
mand of  the  relief  to  which  plaintiff  may  suppose  himself  enti- 
tled,1 the  petition  is  sufficient  if  the  amount  of  damages  is  ascer- 
tainable from  the  facts  alleged,  and  the  plaintiff's  estimate  of 
them  appears  from  the  prayer.2  If,  however,  the  facts  stated 
are  such  as  are  not  necessarily  followed  by  damage  to  the  plaint- 
iff, it  then  becomes  necessary  that  the  petition  should  contain  an 
averment  that  he  has  been  damaged.  Thus,  in  Perry  v.  Musser* 
it  was  alleged  that  defendant  agreed  to  proceed  with  due  dili- 
gence to  collect  certain  notes  which  had  formerly  belonged  to 
both  the  parties  as  partners,  and  that  if  the  notes  were  not  col- 
lected they  were  to  remain  the  property  of  the  parties,  who  were 
equally  to  bear  the  loss.  It  was  then  alleged  that  defendant  did 
not  use  due  diligence  in  presenting  one  of  the  notes,  and  that  by 
reason  of  such  failure  he  became  liable  to  pay  plaintiff  the  sum 
claimed.  The  petition,  however,  did  not  contain  an  averment 
that  plaintiff  sustained  any  damage  whatever  in  consequence  of 
the  alleged  neglect  of  defendant,  or  any  facts  from  which  dam- 
age or  loss  would  be  inferred.  For  this  reason  it  was  held  that 
a  demurrer  to  the  evidence  should  have  been  sustained,  the  court 
saying  that  the  mere  failure  to  proceed  with  diligence  to  collect 
the  note  did  not  necessarily  entitle  plaintiff  to  a  judgment,  since 
there  was  no  allegation  that  the  maker  of  the  note  was  solvent 
when  it  became  due  and  became  insolvent  afterwards,  and  that 
plaintiff  was  therefore  damaged  by  defendant's  negligence,  nor 
was  there  any  other  allegation  which  of  necessity  showed  that 
damage  resulted  to  plaintiff.4 

§  273.  Stating  jurisdictional  facts. —  At  common  law  it  was 
necessary  in  pleading  the  rendition  of  a  judgment  of  an  inferior 
tribunal,  or  that  of  a  court  of  general  jurisdiction  in  the  ex- 
ercise of  a  special  jurisdiction,  to  aver  all  jurisdictional  facts; 
but  this  has  been  changed  by  the  practice  act.5  Now  in  plead- 
ing a  judgment  or  other  determination  of  a  court  or  officer 
of  special  jurisdiction,  it  is  not  necessary  to  state  the  facts  con- 
ferring jurisdiction,  but  it  is  sufficient  to  state  that  such  judg- 

1  Rev.  Stat.  1899,  sec.  592.  *  The  rules  as  to  stating  the  darn- 

2Christal  v.  Craig,  80  Mo.  367.  ages  will  be  found  post,  §  317  et  seq. 

3  68  Mo.  477.  s  State  ex  reL  v.  Johnson,  78  App.  569. 


§  274.]  STATING    CAUSE   OF   ACTION.  1G1 

ment  or  determination  has  been  duly  given  or  made;  and  if 
the  allegation  is  controverted,  the  party  pleading  it  must  es- 
tablish at  the  trial  the  facts  conferring  the  jurisdiction.1  In 
an  action  by  a  public  administrator  against  his  predecessor  in 
office  to  recover  assets  not  accounted  for,  a  petition  which  avers 
an  order  of  the  probate  court  upon  the  defendant  to  pay  and  de- 
liver such  assets  to  plaintiff  is  sufficient  within  the  fore^oino- 
section;  it  is  not  necessary  to  set  forth  the  facts  upon  which  the 
order  was  based.2  But  where  a  proceeding  is  had  in  the  circuit 
court  of  St.  Louis,  or  before  one  of  the  judges  in  vacation,  for  a 
condemnation  of  property  for  street  purposes,  the  circuit  court 
being  in  such  cases  in  the  exercise  of  a  special  jurisdiction  not 
according  to  the  common  law,  the  facts  which  give  the  court 
jurisdiction  must  be  set  forth ;  that  is,  the  petition  must  show 
that  the  ordinance  providing  for  opening  the  street  was  passed 
either  on  the  unanimous  recommendation  of  the  board  of  public 
improvements  or  on  the  petition  of  the  owners  of  a  major  por- 
tion of  the  ground  fronting  on  the  proposed  street.3  And  a  pe- 
tition for  the  opening  of  a  private  road  must  show  that  it  is  a 
way  of  necessity,  otherwise  the  court  has  no  jurisdiction  to  pro- 
ceed.4 The  circuit  courts  of  the  United  States  being  courts  of 
general  jurisdiction,  it  is  not  necessary,  in  suing  upon  a  judg- 
ment of  such  a  court,  to  set  out  the  facts  showing  that  it  had 
jurisdiction  of  the  cause.5 

§  271.  Where  the  cause  of  action  is  a  statutory  one. — 
Where  suit  is  brought  upon  a  statutory  cause  of  action  it  is  only 
necessary  that  the  petition  should  state  facts  which  bring  the 
case  within  the  provisions  of  the  statute,  and  a  reference  to  the 
statute  is  unnecessary.6  The  rule  applies  to  an  action  brought 
under  the  statute  as  to  death  resulting  from  personal  injuries.7 
If,  in  an  action  upon  a  delinquent  tax  bill,  the  petition  alleges 
that  the  taxes  were  duly  levied,  that  is  sufficient;  plaintiff  need 
not  point  out  all  the  details  of  the  revenue  law  and  state  a  com- 
pliance with  them.8     So,  in  a  proceeding  against  an  insurance 

1  Rev.  Stat.  1899,  sec.  634.  tion  in  a  case  where  jurisdiction  ex- 

2  State  ex  reL  v.  King,  76  Mo.  510.  ists,  is  plainly  marked  both  by  the 

3  St.  Louis  v.  Gleason,  89  Mo.  67.  statute  and  in  the  adjudicated  cases. 
*  Colville  v.  Judy,  73  Mo.  651.  State  ex  reL  v.  Scarritt,  128  Mo.  331, 
8  Wonderly  v.  Lafayette  County,  150  339. 

Mo.  635.    It  may  be  well  to  call  atten-        «  Kennedy  v.  Pacific  R.  Co.,  45  Mo. 

tion  to  the  fact  that  the  distinction  255. 

between  want  of  jurisdiction  and  a        7  White  v.  Maxcy,  64  Mo.  552. 
mere  omission  to  state  a  cause  of  ac-        8  State  to  use  v.  White.  61  Mo.  441. 
Mo.  Code  Pl.— 11 


162  THE  PETITION.  [§§  275,  270. 

company  for  violation  of  a  statutory  provision  requiring  the  fil- 
ing of  a  statement  with  the  insurance  department,  the  petition 
is  good  if  it  uses  the  language  of  the  statute  in  describing  the 
statement  required  to  be  filed,  and  charges  that  such  statement 
was  not  made  and  filed  as  required  by  law.  The  provisions  of 
the  statute  need  not  be  set  out.1  Where  clerks  of  courts  in  coun- 
ties having  a  population  between  thirty  thousand  and  forty  thou- 
sand are  entitled  to  receive  a  salary  of  $2,250,  it  is  not  necessary 
for  a  clerk  suing  for  his  salary  to  allege  what  the  population  of 
the  county  is;  it  is  sufficient  for  him  to  allege  that  his  salary  is 
S2.250.2 

§  275.  Though  a  petition  may  not  be  good  as  a  pleading  framed 
on  the  statute,  yet  if  it  sets  forth  a  good  cause  of  action  at  com- 
mon law  it  should  not  be  dismissed.3  Thus,  a  petition  under  the 
statute  giving  treble  damages,  which  is  defective  in  not  contain- 
ing the  averments  required  by  the  statute,  may  yet  state  a  good 
cause  of  action  at  common  law  for  single  damages.4  In  an  action 
against  a  railroad  company  for  burning  plaintiff's  hay,  the  fact 
that  the  petition  alleges  negligence  on  defendant's  part  will  not 
make  the  action  one  at  common  law,  if  there  is  sufficient  in  the 
averments  to  bring  it  under  the  statute.5 

§  276.  Facts  inferable  from  facts  stated. —  Where  a  petition 
is  attacked,  at  least  after  the  answer  is  filed,  and  sometimes  even 
when  attacked  by  demurrer,  the  court  will  not  only  give  effect 
to  the  allegations  which  are  actually  made  in  the  petition,  but 
will  also  treat  as  having  been  pleaded  those  facts  which  may 
be  naturally  and  reasonably  inferred  from  the  facts  which  are 
alleged.  This  subject  has  been  fully  discussed  in  chapter  YI,  but 
I  have  thought  it  best  to  briefly  consider  it  here  also.  Facts  which 
are  necessarily  implied  from  the  direct  averments  of  the  petition 
will  be  treated  as  though  they  had  been  in  terms  alleged.6  And 
when  certain  facts  are  pleaded,  inferences  contrary  to  these  facts 
are  not  to  be  considered.7  In  an  action  brought  to  recover  money 
which  had  been  deposited  with  a  stakeholder,  and  had  been  paid 
b}r  him  to  the  winner  of  the  bet,  there  was  no  direct  averment  in 

i  State  v.  Case,  53  Mo.  246.  5  Walker  v.  Mo.  Pac.  R  Co.,  68  App. 

2  Lycett  v.  Wolff,  45  App.  489.  465. 

3  Comings  v.  Han.  &  Cent.  Mo.  R.  6  Weaver  v.  Harland,  48  App.  319. 
Co.,  48  Mo.  512;  Kneale  v.  Price,  21  7Carondelet  Gas  Light  Co.  v.  Pratt, 
App.  295.  7  App.  57a 

4  Atlantic  &  Pac.  R  Co.  v.  Freeman, 
61  Mo.  80. 


§§  277,  273.]  STATING    CAUSE    OF   ACTION.  1G3 

the  petition  that  defendant  knew  that  the  money  deposited  with 
him  had  been  so  deposited  on  a  wager,  but  it  did  contain  aver- 
ments of  the  particulars  of  the  wager,  upon  what  election  the 
money  had  been  wagered,  and  that  the  money  had  been  placed 
in  the  defendant's  hands  as  stakeholder  to  abide  the  result  of  said 
election.  These  allegations  were  held  to  be  sufficient,  inasmuch 
as  the  fact  that  defendant  knew  that  the  money  had  been  bet  on 
the  result  of  the  election  must  be  implied  from  the  allegations.1 
"Where  a  petition  contains  an  allegation  that  an  administrator  in 
making  a  sale  of  property  belonging  to  the  estate  failed  to  take 
a  "  note  with  security,"  this  may  properly  be  held  to  mean  a 
note  "with  sufficient  security."2 

§277.  The  test  of  sufficiency.— The  true  test  of  the  suffi- 
ciency of  a  petition  is  whether,  if  all  the  facts  therein  stated  are 
true,  the  plaintiff  is  entitled  to  any  relief.3  And  the  petition  is 
fatally  defective  if  all  the  facts  stated  in  it  will  not,  even  if  true, 
warrant  a  recover}^.4  The  facts  set  forth  must  be  such  as  under 
the  rules  and  principles  of  law  would  entitle  the  plaintiff  to  a 
judgment.5 

§  278.  Making  unnecessary  averments.6  —  It  not  infrequently 
happens  that  a  petition  is  so  drawn  as  to  contain  averments 
which  are  unnecessary  to  the  statement  of  the  cause  of  action 
sued  on.  In  such  case  the  question  is  an  important  one,  whether 
such  unnecessary  averments  are  mere  surplusage,  or  whether, 
having  been  made,  they  become  essential,  so  that  proof  of  them 
will  be  required.  It  is  not  always  easy  to  determine  within 
which  class  any  given  case  should  fall.  The  fact  that  more  is 
alleged  than  it  is  necessary  for  plaintiff  to  prove  to  entitle  him 
to  a  verdict  will  not  prevent  his  recovery,  if  he  avers  and  proves 

1  "Weaver  v.  Harland,  43  App.  319.  Ferguson  v.   Davidson,  65  App.  193. 

2  State  ex  rel.  v.  Edwards,  78  Mo.  This  point  is  also  necessarily  consid- 
473.  See  also  State  ex  reL  v.  Carroll,  ered  in  the  chapter  on  The  Dernur- 
62  Mo.  156.  rer,  which  should  be  consulted.     See 

That  facts  raised  by  merely  legal  im-  ch.  XXXII. 

plication   are  not  such  constitutive  4  State  to  use  v.  Bacon,  24  App.  403; 

facts  as  are  necessary  to  be  averred  Bank  of  Little  Eock  v.  Fisher,  55  App. 

in  order  to  state  a  cause  of  action  is  51 ;   Benedict  Mfg.   Co.   v.   Jones,   60 

shown  in  g  271,  ante.  App.  219. 

That  in  actions  to  recover  a  penalty  B  Biddle  v.  Boyce,  13  Mo.  532.  That 
the  statement  cannot  be  helped  out  the  defects  of  the  petition  may  be  sup- 
by  intendment.  Bee  .>  447,  post.  plied  by  the  answer,  see  §  269,  ante, 

3Wetmore  v.  Crouch,  55  App.  441;  and  also  ch.  XXXVII.                • 

State  ex  rel.  v.  Pohlman,  60  App.  444;  K  In  chapter  VI  it  is  shown  that  the 


104  THE   PETITION.  [§  279. 

enough  to  make  out  his  case,1  unless  the  unproven  allegations 
are  such  as  are  necessary  to  authorize  a  recovery.2  A  petition 
which  states  in  effect  that  plaintiff  delivered  to  defendant  ahorse 
to  keep  and  train,  that  defendant  agreed  to  take  care  of  the  horse 
and  return  it  to  plaintiff  on  demand,  and  that  defendant  failed 
to  do  so,  states  facts  sufficient  to  constitute  a  cause  of  action,  as 
proof  of  these  averments  would  make  a  prima  facie  case  for 
plaintiff;  and  though  they  are  somewhat  fuller  than  necessary, 
they  are  not  so  full  as  to  impose  on  plaintiff  the  obligation  of 
affirmatively  proving  that  the  failure  to  return  the  animal  was 
the  result  of  defendant's  negligence.3 

§  279.  The  rule  illustrated. —  In  actions  based  upon  the  stat- 
utory liability  of  railroad  companies,  plaintiffs  sometimes  include 
in  their  petitions  an  allegation  of  negligence — an  allegation  totally 
unnecessary,  if  the  violation  of  the  statute  is  made  the  ground 
of  recovery.  Thus,  in  Radcliffe  v.  St.  Louis,  L.  M.  <&  S.  R.  Co.,* 
which  was  an  action  for  killing  plaintiff's  horse,  and  in  Camp- 
dell  v.  Missouri  Pac.  R.  Co.,5  which  was  an  action  for  the  de- 
struction of  plaintiff's  property  by  fire  communicated  from  a 
locomotive,  and  in  Walker  v.  Missouri  Pae.  R.  Co.,6  which  was  a 
case  of  the  same  nature  as  the  last,  the  petition  in  each  case  con- 
tained an  allegation  of  negligence,  and  in  each  case  it  was  held 
that,  though  the  averment  of  negligence  was  not  proved,  yet,  as 
proof  of  negligence  was  not  necessary  to  a  recovery,  plaintiff  was 
entitled  to  a  judgment  if  he  proved  the  facts  essential  to  the 
statutory  liability  of  defendant.  In  Morrow  v.  Surler,1  plaintiff, 
as  county  treasurer,  brought  an  action  to  recover  back  money 
paid  to  defendant  on  a  warrant  after  the  funds  against  which 
the  warrant  was  drawn  had  been  exhausted.  The  petition  not 
only  contained  the  averment  that  the  fund  was  exhausted  when 
the  warrant  was  paid,  but  also  that  the  clerk  who  paid  it  was 
ignorant  of  that  fact,  and  that  he  was  also  misled  by  the  fraud- 
ulent misrepresentations  of  defendant's  agent.  The  court  held 
that  the  plaintiff,  as  an  officer  of  the  county,  could  not  properly 
pay  out  the  county  funds  on  such  a  warrant,  and  that  he  was 

statement  of  facts  which  are  merely  cussed  in  chapter  V.     See  §§  101,  102. 

evidential  is  unnecessary.    See  §§  128-  See  also  §§  565,  566,  post. 

130.  s  Casey  v.  Donovan,  75  App.  665. 

1  Hartpence  v.  Rogers,  143  Mo.  623.        *  90  Mo.  127. 

2  Gannon  v.  Laclede  Gas  Light  Co.,        «121  Mo.  340. 
145  Mo.  502.    This  subject  is  also  dis-        6  68  App.  465. 

7  97  Mo.  155. 


■§§  280,  281.]  STATING    CAUSE    OF   ACTION.  105 

entitled  to  recover  in  the  action  "whether  or  not  he  proved  the 
ignorance  of  the  clerk  and  the  fraudulent  representations  of  de- 
fendant's agent.  Koopman  v.  Cahoon1  is  a  case  where  plaintiff 
had  placed  money  in  the  hands  of  defendant  as  trustee,  and,  the 
purpose  of  the  trust  having  failed,  plaintiff  sued  to  get  his  money 
back.  The  petition  contained  charges  of  fraud  against  the  de- 
fendant, which  charges  plaintiff  failed  to  substantiate  by  proof. 
It  was  held  that,  having  proved  the  trust  and  the  failure  of  its 
purpose,  plaintiff  could  recover,  notwithstanding  he  had  not 
proved  the  fraud.  And  in  this  last  case  the  court  makes  the 
broad  statement  that "  under  the  reformed  procedure  the  plaint- 
iff is  never  to  be  deprived  of  his  verdict  and  judgment  merely 
because  he  has  alleged  too  much.  The  surplusage  may  be  re- 
jected, and,  if  his  petition  is  still  good,  then  under  the  doctrine 
of  aider  by  verdict  he  may  keep  his  judgment,  no  other  error 
appearing."2  This  was  the  rule  at  common  law,  it  having  been 
held  in  a  very  early  case,  decided  many  years  before  the  adop- 
tion of  the  Code,  that  surplusage  in  a  declaration  may  be  stricken 
out,  if  there  is  then  sufficient  left  for  a  good  declaration.3 

§  280.  "Where  an  action  is  manifestly  one  at  law,  if  a  good 
cause  of  action  at  law  is  stated,  it  is  not  vitiated  by  adding  other 
matters  of  equitable  cognizance  which  were  abandoned  at  the 
trial.4  In  a  possessory  action,  allegations  as  to  title  are  surplus- 
age.5 

§  281.  The  charter  of  Kansas  City  provided  that  in  an  action 
on  a  special  tax-bill  it  should  be  sufficient  for  the  plaintiff  to 
"  plead  the  making  and  issuing  of  the  tax-bill  sued  on,  giving  the 
date  and  contents  thereof,  filing  the  same,  and  allege  that  the 
party  or  parties  made  defendants  own  or  claim  to  own  the  land 
charged,  or  some  estate  or  interest  therein."  In  an  action  on  a 
special  tax-bill  the  petition  contained  the  further  averment  that 
the  work  for  which  the  tax-bill  was  issued  was  well  and  faith- 
fully done.  It  was  held  that,  as  plaintiff  was  not  required  to 
plead  this  fact,  he  was  not  required  to  prove  it;  and  if  defend- 
ant intended  to  defend  on  the  ground  that  the  work  was  not 
properly  done,  he  must  specially  plead  that  defense,  and  not  rely 
upon  a  general  denial  of  the  allegation  in  the  petition.6 

1 47  App.  357.  4  Floyd  v.  Gilkey,  29  App.  211. 

2  Koopman  v.  Cahoon,  47  App.  357,  5  Gibson  v.  Chouteau,  7  App.  1. 
86a  6Guinotte  v.  Eidge,  46  App.  254. 

3  Crocker  v.  Mann,  3  Mo.  472. 


166  tub  petition.  [§§  282-284. 

§  282,  Exceptions  to  the  rule  as  to  proving  unnecessary 

averments. —  Yet  there  are  cases  in  which  a  party  will  be  held 
to  prove  an  unnecessary  averment;  if  he  avers  more  than  is 
essential  to  a  recovery,  and  the  additional  averments  are  not 
immaterial,  he  may  yet  make  them  essential  to  his  cause  of  ac- 
tion. An  illustration  of  this  is  found  in  an  early  decision  of  the 
supreme  court,  where,  in  an  action  for  breach  of  warranty  of 
the  soundness  of  an  animal,  the  petition  not  only  contained  an 
averment  that  the  animal  was  unsound,  but  a  further  averment 
that  the  disease  constituting  the  unsoundness  was  glanders;  and 
it  was  held  that,  though  this  last  averment  was  unnecessary,  yet 
as  the  pleader  had  thought  proper  to  make  the  averment,  he  was 
bound  to  prove  it,  since  unnecessary  averments,  unless  they  are 
immaterial,  must  be  proved.1  So,  too,  if  plaintiff  unnecessarily 
restricts  the  issues  by  his  allegations,  he  will  be  bound  to  the 
issues  thus  limited.2 

§  283.  The  allegations  of  the  petition  must  he  taken  to- 
gether.—  The  allegations  must  all  be  taken  together,  and  an 
allegation  that  defendant  agreed  to  accept  a  certain  sum  in  dis- 
charge of  a  debt  must  be  controlled  and  explained  by  the  entire 
petition,  which  shows  that  the  cause  of  action  is  the  breach  of  a 
contract.3 

§284.  Its  averments  must  be  consistent. —  The  averments 
of  a  petition  must  be  consistent  with  each  other.4  Where  in  an 
action  to  recover  damages  for  personal  injuries  the  petition  con- 
tained an  allegation  that  plaintiff,  while  in  the  service  of  a  rail- 
road company,  proceeded  to  uncouple  a  car,  and  that  someone 
unknown  to  him  caused  the  cars  to  be  moved  without  notice  to 
him,  whereby  he  was  injured,  and  then  contained  the  further 
allegation  that  the  failure  of  the  company  to  have  a  proper  sys- 
tem and  proper  rules  regarding  such  matters  was  the  direct 
cause  of  the  cars  being  moved  without  notice  to  him,  the  two 
allegations  are  so  inconsistent  that  they  cannot  stand  together. 
Plaintiff  alleged  that  he  did  not  know  who  caused  the  train  to* 
move,  from  which  it  necessarily  follows  that  he  did  not  know 
why  and  how  it  was  moved.  If  he  did  not  know  these  facts,  he 
cannot  affirm  that  the  movement  was  the  result  of  the  failure  to 
establish  rules.5 

i  Lindsay  v.  Davis,  30  Mo.  40fi.     See  Mo.  312.    That  the   different  counts 

also  §  300;  but  compare  §  294,  note  7.  of   a  petition  must  be  consistent  is 

2  Jackson  v.  Hardin,  83  Mo.  175.  shown  in  ch.  X,  §  233. 

3Larow  v.  Bozarth,  68  App.  40G.  ^Rutledge  v.   Mo.  Pac.  R.  Co.,   110 

*Rutledge   v.  Mo.  Pac.  R.  Co.,   110  Mo.  312. 


§§  285,  286.]  STATING    CAUSE   OF   ACTION.  1G7 

§285.  Pleading  the  legal  effect. —  In  many  instances,  espe- 
cially where  the  cause  of  action  was  founded  upon  a  written 
instrument,  the  common  law  required  that  the  facts  should  be 
pleaded  according  to  their  legal  effect.  It  has  been  held  in  this 
state  that  it  is  sufficient  to  so  plead  them  where  the  action  is  on 
a  contract,  and  that,  if  the  contract  is  evidenced  by  a  writing, 
such  writing  need  not  be  set  out  in  hcec  verba.  But  as  this  ques- 
tion has  been  fully  discussed  in  chapter  VII, x  I  will  not  pursue  the 
subject  further  here,  except  to  note  a  few  cases  illustrating  the 
rule.  Where  an  assignee  of  a  bond  brings  an  action  on  it  against 
the  obligor,  he  must  set  forth  his  title ;  it  is  not  sufficient  merely 
to  aver  that  he  is  the  legal  holder  of  the  bond.2  If  a  party  seeks 
to  enjoin  a  sale  under  a  deed  of  trust,  it  is  not  sufficient  to  merely 
allege  that  he  does  not  owe  the  note  secured  by  such  deed.  He 
must  set  up  the  particular  ground  upon  which  he  relies,  as  that 
he  has  paid  the  note,  or  there  was  a  want  of  consideration  for 
it,  or  any  equivalent  matter.3  Where  one  railroad  company 
leases  its  road  to  another  company,  the  lessor  still  remains  liable 
for  damages  occurring  on  its  road,  though  the  lessee  is  also  lia- 
ble. In  an  action  against  the  lessor  it  is  not  necessary  to  set  out 
the  lease  and  that  the  act  causing  the  injury  was  done  by  the 
lessee,  but  it  is  sufficient  to  charge  that  the  act  was  done  by  the 
lessor,  which  is  said  by  the  court  to  be  pleading  the  legal  effect.4 
In  Dougherty  v.  Matthews?  which  was  an  action  to  recover  from 
an  assignee  of  a  lease  certain  rent  which  had  accrued  under  the 
lease,  the  allegation  of  the  petition  was  that  defendant  "as- 
sumed "  the  payment  of  the  rent,  while  the  writing  offered  in  evi- 
dence stated  that  he  "  assured  "  its  payment.  It  was  objected 
that  there  was  a-  variance.  But  the  court  held  that  it  was  imma- 
terial that  the  agreement  read  "assured,"  while  the  petition 
used  the  word  "assumed."  "It  was  enough,"  says  the  court, 
"  for  the  plaintiff  to  state  it  according  to  its  legal  effect."  (pp.  522, 
528.) 

§286.  Anticipating  defense.— Where  the  averments  of  the 
petition  disclose  &  prima  facie  defense  to  the  cause  of  action  set 
forth  in  the  petition,  it  is  necessary  that  such  petition  should 
contain  averments  of  additional  facts  which  go  to  avoid  such  de- 
fense; otherwise  the  pleading  is  bad.6    But  it  is  not  necessary  to 

l  See  §§  143-157.  5  35  Mo.  520. 

*  Smith  v.  Dean,  19  Mo.  63.  6  Bassett  v.  Western    Union    Tele- 

3  Foster  v.  Reynolds,  38  Mo.  553.  graph  Co.,  48  App.  566. 

4  McCoy  v.  Kansas  City,  St.  J.  &  C. 
B.  R  Co.,  36  App.  445. 


10S  THE   PETITION.  [§  287. 

aver  a  waiver  of  the  performance  of  a  condition  in  the  contract.1 
Nor  is  it  necessary  to  notice  in  the  petition  any  conditions  sub- 
sequent annexed  to  the  right  which  plaintiff  asserts,  since  the 
office  of  such  a  condition  is  not  to  create  the  right  on  which 
plaintiff  bases  his  demand,  but  to  qualify  or  defeat  it;  therefore 
such  condition  furnishes  matter  of  defense  which  must  be  set  up 
by  the  defendant.2  The  act  of  May  15,  1S77,3  relating  to  the 
enforcement  of  delinquent  taxes  by  cities  of  the  second  class, 
provides  that  when  any  sale  of  real  estate  shall  be  discontinued, 
or  when  any  real  estate  has  been  bid  off  for  the  city,  and  also  in 
all  cases  when  taxes  have  become  delinquent  before  the  passage 
of  the  act,  suit  may  be  brought  in  the  name  of  the  city  to  enforce 
the  collection  of  the  taxes.  The  statute  further  provides  that  it 
shall  be  sufficient  to  state  in  the  petition  the  amount  of  the  tax, 
the  rate  of  interest  and  the  date  from  which  it  is  claimed,  the 
property  upon  which  the  tax  is  charged,  the  owner  thereof,  and 
the  year  or  years  for  which  the  tax  is  levied ;  or  if  it  is  a  special 
tax,  the  date  and  title  of  the  ordinance  under  which  it  is  levied, 
and  that  such  tax  has  not  been  paid.  Such  a  petition  is  there- 
fore good,  though  it  fails  to  allege  that  the  sale  of  the  real  estate 
has  been  discontinued,  or  that  the  real  estate  has  been  bid  off  for 
the  city,  or  that  the  taxes  became  delinquent  before  the  passage 
of  the  act.4 

§  287.  The  question  of  anticipating  the  defense  considered 
in  adjudged  cases. —  Where  a  bill  is  filed  to  set  aside  a  sale 
under  execution,  the  ground  being  that  distinct  parcels  of  land 
were  sold  in  mass,  it  is  not  necessary  for  plaintiff  to  aver  that  he 
did  not  desire  or  direct  the  property  to  be  sold  in  mass.5   "Where  a 

1  Elf  rank  v.  Seiler,  54  Mo.  134;  Rus-  says  the  court,"  was  new  matter  which 
sell  v.  State  Ins.  Co.,  55  Mo.  585.  defendant  ought  to  have  pleaded  and 

2  Menefee  v.  Bell,  62  App.  659.  This  proved.  It  was  no  part  of  plaintiff's 
case  was  an  action  on  a  special  tax-  case  in  chief.  He  established  a,  prima 
bill  for  work  done  in  Kansas  City,  facie  right  of  recovery  by  the  mere 
The  charter  provided  that  if  suit  is  introduction  of  the  tax-bill  and  proof 
brought  on  the  tax-bill  within  two  of  the  assignment."  (p.  663.)  To  the 
years,  notice  of  such  suit  must  be  filed  same  effect  is  the  decision  in  Sea- 
in  the  office  of  the  board  of  public  board  National  Bank  v.  Wright,  63 
works  within  a  certain  time.     The  App.  144 

court  held  that  it  was  unnecessary  for  3Now  sec.  5639,  Eev.  Stat.  1899. 

plaintiff  in  his  petition  to  allege  that  4St.  Joseph  v.  Kansas  City,  St.  J.  & 

such  notice  had  been  given.     "  The  C.  B.  R.  Co.,  118  Mo.  671. 

failure  to  file  notice  of  the  suit  in  the  5  Kelly  v.  Hurt,  61  Mo.  463. 
office  of  the  board  of  public  works," 


§§  288,  289.]  STATING   CAUSE    OF   ACTION.  1G0 

foreign  insurance  company  brings  an  action  in  this  state  against 
a  policy-holder  to  recover  the  cash  premium,  the  petition  is  not 
defective  because  it  fails  to  allege  that  plaintiff  has  complied 
with  the  law  regulating  the  right  of  a  foreign  corporation  to  do 
business  in  this  state.1  In  an  action  on  an  oral  contract  of  in- 
surance, it  is  not  necessary  that  plaintiff  should  set  out  the  terms 
and  conditions  which  the  law  holds  to  be  implied  in  such  a  con- 
tract and  then  allege  their  performance;  if  defendant  relies  upon 
the  non-performance  of  any  of  such  conditions,  it  must  set  up 
that  fact  as  a  special  defense.2  Where  a  contract  was  made  by 
an  individual  with  a  firm  composed  of  two  persons,  and  an  ac- 
tion was  brought  by  one  of  the  members  of  the  firm,  alleging 
that  after  dissolution  of  the  partnership  the  contract  had  been 
assigned  to  him,  the  petition  must  allege  that  defendant  recog- 
nized the  contract  after  the  dissolution  and  after  receiving  no- 
tice of  the  same;  otherwise  plaintiff  will  not  be  allowed  to  show 
facts  by  reason  of  which  defendant  was  estopped  to  repudiate 
the  contract.3  If  the  petition  sets  up  a  contract  which  is  good 
at  common  law,  but  voidable  only  for  non-conformity  to  a  stat- 
ute, the  petition  is  sufficient,  and  the  non-conformity  to  the  stat- 
ute must  be  set  up  by  the  defendant  as  a  ground  of  defense.4 

§  288.  Where  an  action  is  brought  on  bonds  which  have  been 
issued  by  a  county  under  an  act  limiting  the  total  amount  to  be 
issued,  if  the  aggregate  amount  of  the  bonds  sued  on  is  less  than 
the  limitation,  the  petition  need  not  allege  that  there  was  not 
an  over-issue,  since,  if  there  was  such  an  over-issue,  this  is  a  mat- 
ter of  defense.5  Where  the  action  is  on  the  official  bond  of  a 
constable  for  failing  to  notify  plaintiff  of  his  exemption  rights, 
it  is  not  necessary  to  aver  that  the  money  which  was  garnished 
and  lost  to  the  plaintiff  was  all  the  property  the  plaintiff  had, 
nor  that  it,  together  with  his  other  property,  would  not  have  ex- 
ceeded in  value  the  statutory  exemption.  If  plaintiff  did  in  fact 
possess  other  money  or  property  at  the  time  of  the  garnishment, 
it  was  for  the  officer  to  show  that  fact  in  defense.6 

§  289.  Where  the  action  is  based  upon  negligence,  the  petition 
is  not  bad  because  it  does  not  anticipate  and  negative  facts  which 
are  proper  matters  of  defense.7    And  plaintiff  need  not  allege 

1  N.  Y.  Life  Ins.  Co.  v.  Stone,  42  App.  «  Catron  v.  Lafayette  Co.,  106  Mo. 
383.  659. 

2  Duff  v.  Fire  Ass'n,  129  Mo.  460.  «  State  ex  rel.  v.  Brady,  53  App.  202. 

3  Hardy  Implement    Co.    v.    South  See  also  §  296,  post. 

Bend  Iron  Works,  129  Mo.  222.  1  Mangold  v.  St.  Louis,  I.  M.  &  S.  R. 

4  Gardner  v.  Armstrong,  31  Mo.  535.     Co.,  24  App.  52. 


170  THE   PETITION.  [§§  290-292. 

that  he  was  at  the  time  of  his  injury  in  the  exercise  of  ordinary 
tare,  or  that  he  was  not  guilty  of  contributory  negligence,  since 
the  presumption  is  in  this  regard  with  the  plaintiff,  and  the  bur- 
den is  upon  the  defendant  to  show  such  facts.1  Where  the  action 
is  to  recover  damages  on  account  of  an  injury  sustained  while 
riding  as  a  passenger  in  the  caboose  of  a  freight  train  on  de- 
fendant's road,  plaintiff  need  not  set  out  the  rules  of  the  com- 
pany and  allege  a  compliance  with  them.2  In  an  action  against 
a  telegraph  company  to  recover  the  penalty  for  delay  in  deliv- 
ering a  message,  it  is  not  necessary  that  plaintiff  should  aver  that 
he  presented  his  claim  for  damages  within  sixty  days;  if  such  is 
not  the  fact,  defendant  must  set  it  up  and  prove  it.s  In  an  action 
against  a  railroad  company  based  upon  its  failure  to  fence  its 
track,  the  petition  need  not  contain  an  averment  that  the  place 
at  which  the  animal  entered  upon  the  tracks  was  not  within  the 
limits  of  an  incorporated  town  or  city.4 

§  290.  Where  there  has  been  an  arbitration,  and  the  party  in 
whose  favor  the  award  is  made  brings  an  action  thereon,  he  need 
only  set  out  so  much  of  the  award  as  shows  his  right  to  recover ; 
if  there  is  anything  in  the  award  constituting  a  defense,  defend- 
ant must  plead  it.5 

§  291.  Where  in  an  action  for  malicious  prosecution  the  peti- 
tion admits  that  the  plaintiff  was  convicted  of  the  charge  for 
which  he  was  prosecuted,  but  it  is  alleged  that,  on  account  of  the 
fraudulent  practices  of  the  defendants  and  their  abuse  of  legal 
process,  he  .was  deprived  of  his  principal  witness,  he  thereby 
states  a  good  cause  of  action.6 

§  292.  Where  in  an  equitable  proceeding  it  becomes  necessary 
for  the  plaintiff  to  show  that  his  relief  has  not  been  barred  by 
operation  of  the  statute  of  limitations,  owing  to  the  fact  of  in- 
tervening disabilities,  he  must  set  out  in  his  bill  the  facts  which 
constitute  the  disability.7  So,  where  facts  appear  in  a  petition 
in  equity  showing  that  plaintiff  has  been  guilty  of  laches  in  as- 
serting his  claim,  and  there  is  an  attempt  on  his  part  to  excuse 
the  delay,  all  the  facts  tending  to  establish  such  excuse  must  be 
definitely  set  forth.8 

1  Taylor  v.  Mo.  Pac.  R.  Co.,  26  App.  237.  In  connection  with  the  cases 
336.  cited  in  this  section,  consult  §g  409 

2  Whitehead  v.  St.  Louis,  I.  M.  &  S.    and  454,  post. 

R.  Co.,  99  Mo.  263.  SFinley  v.  Finley,  11  Mo.  624. 

3  Kendall  v.   Western    Union  Tel.  6  Boogher  v.  Hough,  99  Mo.  183. 
Co.,  50  App.  192.  7  Keeton  v.  Keeton,  20  Mo.  530. 

4  Meyers  v.  Union  Trust  Co.,  82  Mo.  8  Bliss  v.  Prichard,  67  Mo.  181. 


§§  293,  294.]  STATING   CAUSE    OF   ACTION.  171 

§  293.  Negativing  affirmative  matter.— Where  a  person 
seeks  to  recover  money  wrongfully  obtained,  his  petition  must 
contain  such  averments  as  will  exclude  the  idea  that  the  money 
could  have  been  obtained  lawfully.1  If  a  contract  is  by  its  terms 
to  continue  for  a  certain  specific  time,  or  until  the  rescission  of 
a  certain  other  contract,  it  is  not  necessary  in  an  action  on  the 
contract  that  the  petition  should  contain  an  averment  negativing 
the  fact  that  such  other  contract  had  been  rescinded.2  And 
where  a  statute  provides  that  an  action  must  be  commenced 
within  a  certain  time  after  the  happening  of  an  event,  it  is  not 
necessary  to  allege  that  the  action  is  commenced  within  that 
time,  but  it  is  sufficient  to  state  the  date  of  the  happening  of  the 
event.  The  record  of  the  cause  will  show  whether  or  not  the 
action  was  commenced  within  the  requisite  time.3  If  the  gist  of 
the  action  is  the  receipt  of  money,  it  is  improper  for  the  plaintiff 
to  inferentially  deny,  by  a  negative  averment,  that  the  money 
has  been  received.4 

§294.  Further  illustrations  of  the  rule.— Where  a  mort- 
gagee, after  the  mortgage  has  been  foreclosed,  and  the  mort- 
gagee has  become  the  purchaser,  brings  an  action  to  recover  a 
balance  due  on  the  note  secured  by  the  mortgage,  it  is  not  neces- 
sary that  his  petition  should  contain  an  allegation  that,  by  the 
terms  of  the  mortgage,  the  mortgagee  was  authorized  to  pur- 
chase.5 If  the  action  is  against  a  married  woman  for  a  tort,  it  is 
not  necessary  that  the  petition  should  state  that  the  tort  was 
committed  without  the  husband's  consent  or  direction,  since  such 
consent  or  direction,  if  a  matter  of  defense,  is  one  which  the  wife 
should  set  up  in  her  answer.6  Where  an  action  is  brought  upon  a 
breach  of  warranty  of  soundness  in  the  sale  of  a  horse,  a  general 
allegation  that  the  horse  was  unsound,  without  specification,  is 
sufficient ;  and  it  is  unnecessary  to  negative  the  idea  that  the 
defects  were  apparent.7  Where  a  proceeding  is  instituted  by 
the  state  to  recover  land  which  is  claimed  to  have  escheated 
to  the  state  by  reason  of  having  belonged  to  a  deceased  alien, 
the' petition  must  expressly  negative  the  existence  of  those  facts 
which,  under  the  statute,  entitled  an  alien  or  his  heirs  to  hold 

i  Funkhouser  v.  How,  17  Mo.  225.  4  Sullivan  v.  Grace,  5  App.  594. 

2  Kitchen  v.  Cape  Girardeau  &  State  5  Kingman  v.  Hill,  71  App.  666. 
Line  R.  Co.,  59  Mo.  514.  6  Bruce  v.  Bombeck,  79  App.  231. 

3  Brandish  v.  James,  83  Mo.  313;  1  Labeaume v.  Poctlington,  21  Mo. 35. 
Hayden   v.    Wolfing,    19     App.    3.j3; 

Twitchell  v.  Devins,  45  App.  283. 


172  THE  PETITION.  [§§  295, 29G. 

the  land.  Thus,  where  the  statute  provides  that  an  alien  might 
own  real  estate  if  he  had,  at  the  time  of  receiving  his  convey- 
ance, declared  his  intention  to  become  a  citizen  of  the  United 
States,  the  petition  must  state  that  he  had  not  made  such  declara- 
tion. And  if  the  statute  provides  that  an  alien  might  devise  the 
laud,  the  petition  must  aver  that  he  had  not  made  such  devise.1 

§  205.  Provisos  and  exceptions. —  The  distinction  between 
an  exception  in  the  purview  of  an  act  and  a  proviso  is  said  to 
have  been  settled  in  this  state.  If  the  proviso  furnish  matter 
of  excuse  for  the  defendant  it  need  not  be  negatived  in  the  peti- 
tion, but  defendant  must  plead  it.  And  in  this  view  of  the  mat- 
ter it  makes  no  difference  whether  the  proviso  be  contained  in 
the  enacting  clause,  or  be  subsequently  introduced  in  a  distinct 
form.  It  is  the  nature  of  the  exception,  and  not  its  location, 
which  ought  to  govern.  Where,  in  the  same  section  of  the  stat- 
ute in  which  the  right  of  action  is  given,  the  exception  is  con- 
tained, and  it  clearly  appears  that  the  plaintiff  cannot  maintain 
his  cause  of  action  without  negativing  the  exception,  then  his 
petition  must  be  so  framed  as  to  clearly  show  that  the  defend- 
ant is  not  within  the  exception.  But  if  his  right  of  action  is  com- 
plete under  the  statute,  and  there  is  a  provision  or  exception, 
either  in  that  or  some  other  statute,  which  may  be  made  avail- 
able to  defeat  his  right  of  action,  then  the  matter  must  be  taken 
advantage  of  by  the  defendant  by  way  of  defense.2  A  petition 
is  not  obnoxious  to  the  objection  that  it  does  not  state  a  cause 
of  action  because  it  is  silent  as  to  plaintiff's  compliance  with  some 
extraneous  statutory  requirement.3 

§  296.  In  an  action  against  a  constable  for  attaching  property 
exempt  from  execution,  it  is  not  necessary  that  the  petition  should 
aver  that  plaintiff  was  not  a  non-resident  and  was  not  about  to 
remove  out  of  the  state  with  intent  to  change  his  domicile.4 
AVhere  the  action  is  based  upon  a  policy  of  insurance  which  con- 
tains a  general  clause  as  to  the  amount  of  indemnity,  but  after- 
wards in  a  separate  and  distinct  clause  takes  out  of  the  general 
clause  something  which  would  otherwise  be  included  in  it,  if  the 
insured  relies  upon  the  general  clause  he  need  only  set  it  out, 
without  adverting  to  the  separate  clause  operating  as  an  excep- 
tion.5   In  this  case,  which  was  an  action  upon  an  accident  policy, 

i  State  v.  Killian,  51  Mo.  80.  3  Burdsall  v.  Da  vies,  58  Mo.  138. 

2  State  to  use  v.  Clark,  42  Mo.  519;        4 State  to  use  v.  Clark,  42  Mo.  519. 
Russell  v.  Hannibal  &  St.  J.  E.  Co.,  83    See  also  note  6,  p.  169. 
Mo.  507.  5  Crenshaw  v.  Pacific  Mut.  Life  Ins. 

Co.,  71  App.  42. 


§§  297-299.]  STATING    CAUSE   OF   ACTION.  173 

the  indemnity  fixed  was  $10  per  week.  There  was,  however,  a 
subsequent  clause  which  provided  that  the  insured  should  not  be 
entitled  to  indemnity  in  excess  of  his  salary  or  the  money  value 
of  his  time.  There  was  no  evidence  as  to  what  his  salary  was, 
or  the  money  value  of  his  time,  but  it  was  held  that  prima  facie 
he  had  the  right  to  recover  $10  per  week  indemnity,  and  that  if 
defendant  insisted  that  his  salary  or  the  value  of  his  time  was 
less  than  that,  it  should  plead  such  fact  and  make  proof  of  it.1 

§  297.  Where  there  is  a  condition  precedent.2  —  In  pleading 
the  performance  of  a  condition  precedent  in  a  contract  it  is  not 
necessary  to  state  the  facts  showing  such  performance,  but  plaint- 
iff may  state  generally  that  he  duly  performed  all  the  conditions 
on  his  part.  If  such  allegation  is  controverted  the  plaintiff  must 
establish  on  the  trial  the  facts  showing  performance.3  It  is  nec- 
essary, however,  that  the  petition  should  contain  the  general 
allegation  of  performance  of  a  condition  precedent  prescribed  in 
the  statute,  or  some  averment  showing  an  excuse  for  its  non- 
performance, otherwise  it  will  be  bad  on  demurrer.4  If  the  peti- 
tion avers  in  substance  that  the  plaintiff  kept  and  performed  all 
the  conditions  and  provisions  of  the  contract  to  be  kept  and  per- 
formed on  his  part,  but  that  defendants  failed  to  perform  the 
same  on  their  part,  or  if  it  is  alleged  that  plaintiff  tendered  per- 
formance and  it  was  refused,  and  damages  are  alleged,  this  is 
sufficient;  it  is  not  necessary  to  show  actual  performance,  where 
tender  of  it  is  declined.5  And  an  allegation  that  defendant  hin- 
dered and  prevented  plaintiff  from  completing  his  contract,  by 
throwing  down  a  part  of  the  work  which  plaintiff  was  to  do,  is 
a  sufficient  statement  of  an  excuse  for  non-performance.6 

§298.  Where  there  are  two  covenants. —  Where  two  cove- 
nants are  independent,  and  have  no  reference  to  each  other,  the 
averment  of  the  performance  of  one  of  them,  where  the  action 
is  based  upon  the  other,  will  be  considered  immaterial,  and  an 
answer  denying  the  performance  of  the  immaterial  covenant  is 
demurrable.7 

§  299.  Cases  illustrating  the  rule  as  to  pleading  a  condi- 
tion.—  Where  in  an  action  upon  a  policy  of  insurance  the  peti- 

1  See  also,  as  illustrating  the  rule,  Beckman  v.  Phoenix  Ins.  Co.,  49  App. 
the  last  citation  in  §  294,  ante.  604;  Ricketts  v.  Hart,  73  App.  647. 

2  That  plaintiff  need  not  notice  a  5  Dobbins  v.  Edmonds,  18  App.  307. 
condition  subsequent,  see  §  286,  ante.  6  Little  v.  Mercer,  9  Mo.  218.     See 

s  Rev.  Stat.  1899,  sec.  634  also,  §  295,  n.  3,  ante. 

4Basye    v.   Ambrose,  32    Mo.    484;        7Simonds  v.  Beauchamp,  1  Mo.  589; 

Brand  v.  Vanderpool,  8  Mo.  507. 


174  the  petition.  [§§  300,  301. 

tion  sets  forth  the  terms  of  the  policy,  and  follows  with  an 
allegation  of  due  performance  of  all  the  conditions  and  obliga- 
tions to  be  performed  by  plaintiff,  such  as  notice  of  death,  etc., 
it  sufficiently  pleads  performance  of  all  the  conditions  precedent ; l 
and  it  is  not  necessary  to  specifically  aver  notice  and  proof  of 

loss.2 

§  300.  "Where  one  has  contracted  to  purchase  stock  from  a  cor- 
poration, and  the  payment  of  the  money  and  the  delivery  of  the 
stock  were  to  be  simultaneous  acts,  the  company  may  commence 
an  action  for  breach  of  the  contract  without  averring  an  offer  or 
readiness  on  its  part  to  perform  the  contract  by  having  the  shares 
of  stock  ready  for  transfer  and  delivery.  But  if,  instead  of  bring- 
ing such  an  action,  it  brings  an  action  for  the  contract  price  of 
the  shares,  and  avers  its  readiness  to  comply  with  the  contract, 
this  averment  of  readiness  to  comply  becomes  essential,  and  must 
be  proved  in  order  to  a  recovery.3 

§  301.  In  Tower  v.  Pauly*  defendant  contracted  to  place  a  fur- 
nace in  plaintiff's  house,  and  guaranteed  that  it  should  warm  the 
house  to  seventy  degrees  in  zero  weather,  and  further  promised 
that  "  if  anything  about  the  furnace  is  not  understood,  any  alter- 
ation that  should  be  necessary  to  accomplish  the  above  (heating 
in  zero  weather)  will  be  done  free  of  charge."     Plaintiff  sought 
to  recover  under  this  warranty  damages  for  the  uncomfortable 
condition  of  his  house,  by  reason  of  the  fact  that  the  furnace 
failed  to  heat  the  house  as  agreed,  and  further  damages  because  of 
the  cost  of  extra  fires  which  he  had  to  keep  in  the  house  for  the 
same  reason.  These  averments  were  stricken  out  by  the  trial  court, 
that  court  holding  that  the  warranty  was  conditioned  upon  the 
defendant's  promise  to  make  the  necessary  alterations  free  of 
charge.     But  it  was  held  that  this  construction  of  the  warranty 
was  erroneous;  that  the  warranty  was  not  conditional,  but  abso- 
lute, and  that  the  promise  as  to  making  alterations  furnished  the 
plaintiff  a  cumulative,  and  not  an  exclusive,  remedy.    It  was  also 
held  that  if  the  warranty  had  expressly  stated  that  the  reason- 
able and  careful  use  of  the  furnace  was  a  condition  precedent  to 
its  complying  with  the  warranty,  it  would  have  been  incumbent 
on  the  plaintiff  to  aver  that  the  furnace  was  thus  used  by  him. 
But  while  that  condition  is  implied,  the  omission  to  state  in  ex- 

i  Forse  v.  Supreme  Lodge  K.  of  H.,    29  App.  105;  Rieger  v.  Mechanics'  Ins. 
41  App.  106.  Co.,  69  App.  674 

2  Richardson  v.  North  Missouri  Ins.        3  St.  Louis  Raw  Hide  Co.  v.  Hill,  73 
Co.,  57  Mo.  413;  Okey  v.  State  Ins.  Co.,    App.  142. 

*  67  App.  632. 


§§  302-304. J  STATING    CAUSE    OF   ACTION.  175 

press  terms  in  the  petition  that  the  furnace  was  thus  used  does 
not  render  the  pleading  fatally  defective,  since  the  petition  did 
allege  that  the  furnace  was  insufficient  and  incapable  of  heating 
said  dwelling  to  seventy  degrees  in  zero  weather,  and  thus  im- 
pliedly averred  that  it  would  not  have  done  so  though  the  fur- 
nace had  been  used  reasonably  and  carefully  by  the  plaintiff. 

§  302.  Where  an  action  is  brought  by  a  county  on  the  bond  of 
the  county  clerk  for  failure  to  report  or  account  for  the  excess 
of  fees  collected  by  him  over  and  above  his  salary  and  the  pay 
of  his  deputies,  it  is  not  a  condition  precedent  to  recovery  that 
the  county  court  should  have  made  an  order  on  the  clerk  to  pay 
over  such  fees,  and  therefore  the  petition  is  not  defective  be- 
cause it  does  not  allege  that  such  order  was  made.1  And  in  an 
action  on  the  bond  of  a  defaulting  county  treasurer,  it  is  not 
necessary  that  the  petition  should  aver  that  an  order  was  made 
by  the  county  court  to  turn  over  all  balances  to  his  successor, 
since  such  an  order  is  not  a  condition  precedent  to  the  right  of 
the  county  to  sue.2 

§  303.  In  proceedings  to  open  an  alley,  founded  on  an  ordi- 
nance which  provides  that  it  shall  be  void  unless  the  owners  of 
a  certain  described  strip  of  land  shall  dedicate  such  land  for  alley 
purposes  within  a  given  time,  the  petition  must  contain  an  aver 
ment  of  such  dedication  under  the  ordinance.3 

§  304.  The  rule  as  to  pleading  the  performance  of  a  condition 
precedent  applies  to  a  petition  for  the  specific  performance  of  a 
contract  to  convey  land,  and  plaintiff  need  not  in  such  a  suit  set 
out  a  compliance  with  each  of  the  conditions  precedent  to  a  re- 
covery. Thus  a  petition  for  specific  performance  of  a  contract 
to  convey  land  need  not  aver  that  the  cash  payment  was  made 
as  agreed,  or  that  it  was  tendered,  or  that  a  deed  of  trust  to  se- 
cure the  deferred  payments  was  executed  and  tendered,  though 
the  contract  contains  all  these  provisions.4  But  if  the  action  is 
one  at  law  by  the  vendor  of  real  estate  to  recover  damages  for 
a  breach  of  the  contract  of  sale,  which  contract  provides  that  the 
title  shall  be  perfect  or  no  sale,  a  petition  which  fails  to  aver 
that  the  deeds  tendered  to  defendant  conveyed  a  perfect  title  is 
fatally  defective.5 

1  State  ex  rel.  v.  Henderson,  142  Mo.        s  Birge  v.  Bock,  24  App.  330. 

598;  State  ex  rel.  v.  Chick,  146  Mo.  645.        A  case  in  which  it  is  held  that  the 

2  Clark  County  v.  Hayman,  142  Mo.  petition  alleges  the  performance  of 
430.  every  condition  precedent  to  the  right 

3  St  Louis  v.  Cruikshank,  16  App.  of  recovery  is  that  of  Skeen  v.  Spring- 
495.  field  Engine  &  Thresher  Co.,  84  App. 

4  Pomeroy  v.  Fullerton,  113  Mo.  440.  485. 


17o  THE    PETITION.  |_§  305. 

§  305.  The  rule  applies  to  new  matter  in  an  answer. —  In  a 

case  decided  by  the  court  of  appeals  the  question  arose  oa  a 
counter-claim.  The  action  was  one  to  recover  on  a  quantum 
meruit  a  reasonable  price  for  constructing  a  building.  Defend- 
ant set  up  a  special  contract  between  him  and  plaintiff,  whereby 
the  latter  was,  in  case  of  delay  in  completing  the  building,  to 
forfeit  a  certain  sum  daily.  It  appearing  that  this  agreement  of 
plaintiff  was  coupled  with  certain  conditions,  it  was  held  that  it 
devolved  on  the  defendant  to  note  those  conditions  in  his  an- 
swer, and  to  aver  and  prove  facts  consistent  therewith  which 
would  tend  to  show  plaintiff's  liability;  and  if  he  failed  to  do 
so,  he  was  not  entitled  to  recover  even  nominal  damages.1 

i  Connelly  v.  Priest,  72  App.  673. 


CHAPTER  XIV. 


THE  PRAYER  FOR  RELIEF. 


§  306. 

307. 

308. 

309. 
310. 
311. 

312. 


313. 
314. 
315. 
316. 
317. 


The  petition  must  contain  a 
prayer  for  relief. 

The  certainty  required  in  the 
prayer. 

Mistake  as  to  the  specific  relief 
asked. 

Both  legal  and  equitable  relief. 

Prayer  for  general  relief. 

"Where  the  judgment  is  by  de- 
fault. 

Effect  of  the  prayer  as  deter- 
mining the  character  of  the 
suit. 

What  relief  may  be  asked. 

Different  kinds  of  relief. 

Alternative  relief. 

Demanding  interest. 

Stating  the  damages. 


§  318.  Same — Continuing  damages. 

319.  Stating  the  measure  of  dam- 

ages. 

320.  General  and  special  damages. 

321.  All  damages  included  in  one 

prayer. 

322.  Cases  illustrating  the  rule  as  to 

general  and  special  damages. 

323.  The  rule  in  cases  of  slander  or 

libel 

324.  The  rule  in  cases  of  personal 

injury. 

325.  Loss  of  time  and  earnings. 

329.  In  cases  of  permanent  injury. 

330.  Stating  the  quantum  of  dam- 

ages. 

331.  Damages,    actual   and    exem- 

plary. 


§  306.  Petition  must  contain  a  prayer  for  relief. —  The  peti- 
tion must  contain  a  demand  of  the  relief  to  which  the  plaintiff 
supposes  himself  entitled ;  and  if  the  recovery  of  money  is  de- 
manded, the  amount  thereof  must  be  stated,  or  such  facts  must 
be  stated  as  will  enable  the  defendant  and  the  court  to  ascertain 
the  amount  demanded.1  But,  except  where  judgment  is  rendered 
by  default,  the  court  may  grant  plaintiff  any  relief  consistent 
with  the  case  made  by  him  and  embraced  within  the  issues.2  A 
demand  for  relief  in  accordance  with  the  facts  stated  in  the  peti- 
tion is  an  essential  part  of  the  petition.3  It  does  not  constitute 
a  distinct  cause  of  action,  but  only  shows  the  particular  remedy 
sought.4 

§  307.  The  certainty  required  in  the  prayer. —  A  petition 
is  not  open  to  demurrer  if  the  facts  stated  in  it  entitle  the  plaint- 


1  Rev.  Stat.  1899,  sec.  592. 

2  Rev.  Stat.  1899,  sec.  776. 

3  Miltenberger  v.  Morrison,  39  Mo.  71 ; 
Peyton  v.  Rose,  41  Mo.  257;  Ruther- 
ford v.  Williams.  42  Ma  18. 

Mo.  Code  Pl.— 12 


4  Saline  County  v.   Sappington,   64 
Whipple  v.  Mclntyre,  69  App. 


Mo. 
397. 


178  THE  PETITION.  [§  308. 

iff  to  relief,  though  not  to  the  relief  prayed  for.1  But  it  is  doubt- 
ful whether  this  rule  should  be  applied  as  thus  broadly  stated 
where,  upon  the  state  of  facts  presented  in  the  petition,  different 
remedies  may  be  applicable.2  For,  while  the  Code,  no  doubt, 
intended  to  abolish  many  distinctions  with  respect  to  forms  of 
statement  between  actions  at  law  and  suits  in  equity,  and  to  era- 
power  the  same  court  (if  necessary  in  the  same  proceeding)  to 
adjudicate  legal  and  equitable  rights  and  apply  thereto  legal  and 
equitable  remedies,  it  does  not  sanction,  and  should  not  be  so 
interpreted  as  to  encourage,  such  vagueness  and  uncertainty  in 
the  petition  as  would  leave  the  adverse  party  and  the  court  in 
doubt  as  to  the  relief  demanded,  and  hence  as  to  the  mode  of 
trial  and  as  to  the  issues  which  would  be  material  and  decisive 
in  it.3  And  it  would  be  a  departure  from  the  true  spirit  and 
meaning  of  the  Code  to  require  of  plaintiff  a  plain  and  ooncise 
statement  of  the  facts  constituting  his  cause  of  action,  without 
requiring  at  some  stage  of  the  case  a  plain  statement  of  the 
judicial  action  demanded  thereon,  for  the  information  of  the  de- 
fendant and  for  the  court.4  And  the  court  emphasizes  this  view 
with  the  remark  that  "it  seems  to  be  imagined  that  any  kind  of 
judgment,  whether  legal  or  equitable  in  nature,  that  any  par- 
ticular facts  alleged  may  warrant,  should  be  given  under  our 
code  of  procedure,  whether  asked  or  not;"  and  acids:  "We  do 
not  assent  to  that  view."5  The  purpose  of  the  ruling  requiring 
the  plaintiff  to  state  the  grounds  upon  which  he  expects  judg- 
ment, and  to  specify  the  damages  he  seeks  to  recover  with  rea- 
sonable certainty,  is  to  prevent  surprise  and  to  inform  defendant 
of  the  exact  scope  of  plaintiff's  demand.6 

§  308.  Mistake  as  to  specific  relief  asked. —  Notwithstanding 
the  doctrine  announced  in  the  preceding  section,  if  the  petition 
fully  sets  forth  facts  constituting  the  cause  of  action,  it  is  immate- 
rial what  the  prayer  is;  the  court  will  direct  such  judgment  as 
the  averments  in  connection  with  the  facts  proved  will  warrant.7 
For,  under  the  statute,8  the  court  may  give  any  relief  consistent 
with  the  allegations  of  the  petition,  without  regard  to  what  is 

iBiddle   v.   Ramsey,    52    Mo.  153;        6Mellor  v.  Mo.  Pac.  R  Co.,  105  Mo. 

Harper  v.  Kemble,  65  App.  514.  455,  466.     See  also  §  320,  post. 

2  Rush  v.  Brown,  101  Mo.  586.  Bunnell  v.  Emerson,  80  App.  322; 

3  Ibid.,  p.  592.  Liese  v.  Meyer,  143  Mo.  547.    That  al- 

4  Ibid.,  p.  591.  ternative  relief  will  not  be  granted, 

5  Ibid.,  p.  500.  see  §  315,  post. 

8  Rev.  Stat.  1899,  sec.  776. 


§§  309-311.]        THE  PKAYEB  FOE  BELIEF.  179 

asked  for.1  "Where  the  petition  contains  every  allegation  neces- 
sary to  a  recovery  by  plaintiff,  the  mere  fact  that  the  petition 
concludes  with  an  improper  prayer  will  not  so  govern  the  peti- 
tion itself  as  to  prevent  the  rendering  of  such  judgment  as  is 
warranted  by  the  facts  alleged.2  If  the  plaintiff  makes  out  a 
case  which  entitles  him  to  some  relief  in  the  power  of  the  court 
to  grant,  though  he  may  mistake  as  to  the  specific  relief  to  which 
he  is  entitled,  he  will  not  be  turned  out  of  court,  especially  if  he 
has  one  good  specific  request  and  a  general  prayer;  all  that  por- 
tion of  the  prayer  not  warranted  by  the  petition  should  be  treated 
as  a  nullity.3  But  a  petition  setting  up  a  contract  by  a  married 
woman  for  the  conveyance  of  land,  and  praying  for  specific  per- 
formance and  general  relief,  cannot  be  construed  into  a  petition 
for  a  money  judgment.4 

§  309.  Both  legal  and  equitable  relief. —  Plaintiff  is  entitled 
to  all  the  relief  which  he  could  formerly  have  obtained  upon  the 
facts  stated,  both  from  a  court  of  law  and  of  equity.5 

§  310.  Prayer  for  general  relief. —  Any  relief  appropriate  to 
the  facts  alleged  and  proved  may  be  granted  under  a  prayer  for 
general  relief,  whether  asked  for  in  an  answer  setting  up  affirm- 
ative matter  or  in  a  petition.6  The  plaintiff  in  an  equity  pro- 
ceeding may,  under  such  general  prayer,  have  an  accounting,  if 
such  accounting  is  appropriate  to  the  action.7  But  parties  are 
bound  by  their  pleadings,  and  courts  cannot  give  relief  incon- 
sistent with  the  statement  of  facts,  and  the  admissions  con- 
tained in  them.8  The  mingling  in  a  bill  in  equity  with  the  prayer 
for  specific  relief  of  a  prayer  for  general  relief  is  not  objection- 
able.9 The  above  section  10  has  no  application  where  final  judg- 
ment has  been  rendered  for  the  defendant  on  demurrer.11 

§311.  Where  the  judgment  is  by  default. —  When  there 
has  been  an  interlocutory  judgment  by  default,  plaintiff  cannot 
recover  any  greater  damages  or  other  relief  than  that  which  he 
shall  have  demanded  in  the  petition  as  originally  filed  and  served 
on  the  defendant.12 

i  Henderson  v.  Dickey,  50  Mo.  161.  83  Mo.  365;  Conrad  v.  Howard,  89  Mo. 

See,  however,  §§  310,  311,  post.  217. 

2Dickey  v. Covenant  Mut  Life  Ass'n,  ?  Young  v.  Powell,  13  App.  593. 

82  App.  372.  8  Ramsey  v.  Henderson,  91  Mo.  5G0. 

3McGlothlin  v.  Hemery,  44  Mo.  350.  9Clern  v.  German  Ins.  Co.,  29  App. 

4  Rush  v.  Brown,  101  Mo.  586.  666. 

&  Rankin  v.  Charless,  19  Mo.  490.   See  w  Rev.  Stat.  1899,  sec.  770. 

next  succeeding  section.  n  Rush  v.  Brown,  101  Mo.  586. 

6  Rev.  Stat.  1899,  sec.  770;  Snider  v.  i^Rev.  Stat.  1899,  sec.  770. 
Colman,  72  Mo.  568;  Bevin  v.  Powell, 


180  the  petition.  [§§  312-314. 

§  312.  Effect  of  tlio  prayer  as  determining  the  character  of 
the  suit. —  It  is  often  of  importance  to  all  concerned  to  know 
what  relief  plaintiff  demands,  in  order  to  determine  the  proper 
constitutional  mode  of  trial.1  However,  the  character  of  the  ac- 
tion is  not  always  determined  by  the  relief  prayed  for.  Thus,  if 
the  petition  sets  out  a  good  cause  of  action  at  common  law,  a  de- 
murrer will  not  lie  because  it  asks  for  damages  given  by  statute.2 
So,  if  a  petition  states  consecutively  and  in  connected  form  the 
facts  constituting  a  legal  ground  of  action,  it  does  not  become  a 
bill  in  equity  merely  because  the  prayer  improperly  asks  for  equi- 
table relief;  but  that  part  of  the  petition  relating  to  the  remedy, 
if  separately  stated,  may  be  rejected  as  surplusage.3  An  action 
at  law  upon  the  bond  of  an  executor  will  not  be  changed  into  an 
equitable  proceeding  by  reason  of  the  fact  that  the  reply  con- 
tains a  prayer  for  equitable  relief.4 

§  313.  What  relief  may  be  asked. —  If  the  petition  contains 
but  one  count,  and  that  is  shaped  as  an  action  at  law  for  dam- 
ages, a  prayer  for  an  injunction  is  not  proper.5  Though  the 
defendant  shows  himself  entitled  to  a  conveyance,  but  does  not 
include  in  his  petition  a  prayer  that  the  title  be  vested  in  him,  yet 
his  right  to  hold  the  possession  as  against  the  party  who  is  bound 
to  make  the  conveyance  is  not  impaired;  but  it  is  the  better  prac- 
tice to  ask  the  affirmative  relief.6 

§  314:.  Different  kinds  of  relief. —  A  bill  to  redeem  is  not  ob- 
jectionable because  other  relief  is  asked,  if  it  be  germane  to  the 
case  made;  and  such  relief  may  be  given  against  each  of  several 
defendants  occupying  different  attitudes  toward  the  subject  of 
the  action  as  the  position  of  each  may  warrant.7  Where  an  ac- 
tion is  brought  for  damages  for  the  maintenance  of  a  private 
nuisance,  and  the  petition  contains  a  prayer  for  an  injunction  to 
prevent  its  continuance,  this  is  but  a  single  cause  of  action  for 
which  double  relief  is  asked;  and  it  is  erroneous  to  ignore  the 
allegations  of  damages  and  to  treat  the  case  simply  as  one  for 
an  injunction.8    A  plaintiff  will  not  be  permitted  to  recover  the 

i  Rush  v.  Brown,  101  Mo.  586,  591.  <*  Smith  v.  Sedalia,  152  Mo.  283.  Com- 

2  Atlantic  &  Pac.  R.  Co.  v.  Freeman,  pare  Whipple  v.  Mclntyre,  69  App.  397. 
61  Mo.  80;  Kneale  v.  Price,  21  App.  295;  «  Barker  v.  Circle,  60  Ma  258.  See 
Comings  v.  Hannibal  &  Central  Mo.  R.  also  §  310,  n.  8,  ante, 

Co.,  48  Mo.  512.  7  stillwell  v.  Hamm,  97  Mo.  579. 

3  Brown  v.  Home  Savings  Bank,  5  8  Whipple  v.  Mclntyre,  69  App.  397. 
App.  1 ;  Henderson  v.  Dickey,  50  Mo.  See  in  this  connection  Smith  v.  Se- 
101.  dalia,  152  Mo.  283. 

4  State  ex  reL  v.  Jones,  131  Mo.  104. 
See  the  next  section. 


§§  315-317.]         THE  PRAYER  FOE  RELIEF.  181 

fruits  of  an  illegal  transaction,  and  at  the  same  time  and  in  the 
same  suit  obtain  the  benefit  of  a  decree  annulling  the  transac- 
tion. Therefore  where  he  seeks  to  recover  upon  certain  certifi- 
cates issued  by  a  bank,  and  at  the  same  time  attacks  for  illegality 
the  transaction  upon  which  the  certificates  were  issued  and  asks 
for  equitable  relief,  and  the  appointment  of  a  receiver  to  wind 
up  the  business  of  the  bank,  the  two  positions  are  so  repugnant 
as  to  render  the  petition  bad.1 

§  315.  Alternative  relief. —  If  there  is  a  prayer  for  an  alter- 
native relief  founded  upon  the  assumption  that  the  cause  of  ac- 
tion is  wholly  misconceived,  it  cannot  be  granted.2 

§316.  Demanding  interest. —  The  rule  that  in  an  action  at 
law  the  damages  must  be  stated  at  some  definite  amount,  and 
that  plaintiff  will  be  limited  to  the  damages  which  he  claims,3 
extends  to  the  case  of  interest,  and  interest  cannot  be  recovered 
unless  claimed,  except  in  some  few  instances  where  the  statute 
specifically  makes  it  a  part  of  the  damages.4  In  an  action  on  an 
account,  interest  must  be  claimed  in  the  petition  in  order  to  en- 
title plaintiff  to  recover  it;5  and  the  rule  applies  to  actions  for 
conversion.6  The  case  of  Girvin  v.  St.  Louis  Refrigerator  Co? 
was  an  action  to  recover  for  timber  sold  and  delivered  to  defend- 
ant. The  petition  alleged  that  the  timber  was  of  the  contract 
price  of  $411,  and  claimed  damages  in  the  sum  of  $158.50,  but 
contained  no  prayer  for  the  allowance  of  interest.  It  was  held 
that  the  allegations  of  the  petition  did  not  warrant  a  judgment 
for  any  greater  sum  than  $141,  and  that  a  judgment  for  interest 
was  excessive  and  erroneous.  If,  in  an  action  upon  a  policy  of 
insurance,  the  prayer  does  not  include  a  demand  for  interest, 
none  can  be  recovered.8 

§317.  Stating  the  damages. —  If  the  recovery  of  money  is 
demanded  in  the  petition  the  amount  demanded  must  be  stated, 
or  such  facts  must  be  stated  as  will  enable  the  defendant  and 
the  court  to  ascertain  the  amount  demanded.9  In  an  action  at 
law  the  damages  must  be  stated  at  some  definite  sum,  and  plaintiff 

1  Mansfield  v.  Bank  of  Monett,  74  <*  Horner  v.  Mo.  Pac.  R.  Co.,  70  App. 
App.  200.  285. 

2  Robinson  v.  Rice,  20  Mo.  229;  Pen-        7  66  App.  315. 

senneau  v.  Pensenneau,  22  Mo.  27.  8  Shaver  v.  Mercantile  Ins.  Co.,  79 

s  See  §  317.  App.  420. 

*  Van  Riper  v.  Morton,  61  App.  440.  3Rev.  Stat.  1899,  sec.  592.    That  an 

5  Patterson  v.  Missouri  Glass  Co.,  72  ad  damnum  clause  is  not  necessary, 

App.  492;  State  v.  Gold  Spring  Dis-  see  §  272,  ante. 

tilling  Co.,  72  App.  573. 


182  THE  PETITION.  [§§318-320. 

•will  be  limited  to  such  damages  as  he  claims  in  bis  petition.  And 
any  judgment  in  excess  of  the  sum  claimed  is  erroneous.1  If  the 
prayer  for  judgment  leaves  the  amount  blank,  as,  for  instance, 
kl  Plaintiff  prays  for  $ ,"  it  is  questionable  whether  it  will  sup- 
port a  judgment  for  anything  more  than  nominal  damages.2 

^  318,  Stating  the  damages  —  Continuing  damages. —  If  the 
damages  continue  during  the  progress  of  the  cause,  plaintiff  may, 
in  his  reply  to  the  new  matter  contained  in  the  answer,  allege 
the  additional  damages  and  recover  them.3  And  he  may  also  do 
this  by  a  supplementary  petition.4 

§  319.  Stating  the  measure  of  damages.— It  is  not  necessary 
that  the  petition  should  contain  any  allegation  as  to  the  meas- 
ure of  damages  in  the  action  or  as  to  the  quantum  of  damages, 
since  that  is  a  matter  to  be  regulated  by  the  court  in  its  instruc- 
tions.5 The  case  last  cited  was  an  action  for  injuries  to  plaint- 
iff's realty  resulting  from  the  damming  up  of  a  stream,  and 
thereby  causing  it  to  overflow  plaintiff's  quarry.  It  was  con- 
tended that  the  petition,  though  it  contained  all  necessary  alle- 
gations to  constitute  defendant's  liability,  was  defective  because 
it  neither  stated  a  cause  of  action  for  permanent  injury  to  the 
land,  since  it  did  not  allege  the  value  of  the  land  just  before  the 
overflow  and  its  value  thereafter,  nor  a  cause  of  action  for  a 
temporary  injury,  by  reason  of  the  fact  that  it  did  not  allege 
the  rental  value  of  the  land  from  the  date  of  the  overflow  to  the 
commencement  of  the  action.  But  though  it  was  held  that  in 
such  cases  the  measure  of  damages  is  the  difference  between  the 
market  value  of  the  land  immediately  before  the  injury  occurred, 
and  such  value  after  the  injury  was  complete,  it  is  yet  not  nec- 
essary to  allege  in  the  petition  what  the  respective  values  were 
at  those  different  periods,  but  it  is  sufficient  that  the  petition 
should  charge  the  entire  damage  to  be  one  gross  sum.6 

§  320.  (xeneral  and  special  damages. —  Where  the  damages 
are  general,  the  wrong  itself  fixes  the  right  of  action.  But  spe- 
cial damages  must  be  pleaded  with  a  reasonable  degree  of  par- 
ticularity; and  it  must  appear  that  the  damage  claimed  is  the 
natural  though  not  the  necessary  consequence  of  the  wrong.7 

i  Horton  v.  St.  Louis,  I.  M.  &  S.  R  4  Ward  v.  Davidson,  89  Mo.  445. 

Co.,  83  Mo.  541;  Carter  v.  Sliotwell,  42  sGerdes  v.  Christopher  Arch,  L  & 

App.  663;  Coles  v.  Foley,  13  App.  249.  F.  Co.,  124  Mo.  347;  St.  Louis  Trust 

See  §  311,  ante.  Co.  v.  Bambrick,  149  Mo.  5G0. 

2  Carter  v.  Shotwell,  42  App.  663.  «St.   Louis  Trust  Co.  v.  Bambrick, 

3  St.  Joseph  Union  Depot  Co.  v.  Chi-  149  Mo.  560. 

cago,  R  I.  &  Pac.  R  Co.,  131  Mo.  291.        7  Brown  v.  Hannibal  &  St.  J.  R  Co., 


§§  321-323.]         THE  PRAYER  FOR  RELIEF.  183 

If  the  law  does  not  necessarily  imply  that  a  plaintiff  must  sus- 
tain damage  by  the  act  complained  of,  it  is  essential  that  the  re- 
sulting damage  should  be  shown  with  particularity,  and  it  must 
be  specially  pleaded.1  If  the  damages  are  directly  connected 
with  and  incidental  to  the  injury,  a  general  allegation  that  plaint- 
iff was  injured  by  reason  of  the  wrongful  act  of  defendant,  stat- 
ing the  nature  of  the  injury  and  the  time  and  the  place  of  its 
occurrence,  is  all  that  is  necessary  to  permit  proof  of  such  in- 
juries; but  when  special  damages  are  claimed,  the  facts  showing 
the  special  damage  must  be  alleged.2  The  rule,  both  at  common 
law  and  under  the  Code,  is  that  matters  of  aggravation  do  not 
constitute  part  of  the  cause  of  action,  and  evidence  of  them  is 
admissible  though  they  are  not  pleaded.3 

§321,  All  damages  included  in  one  prayer,— A  plaintiff 
may  include  in  one  count  his  claim  for  general  as  well  as  for 
special  or  consequential  damages,  because,  although  the  damages 
are  of  a  different  class,  the  cause  of  action  is  the  same.4 

§  322.  Cases  illustrating  the  rule  as  to  general  and  special 
damages. —  In  an  action  of  trespass  for  tearing  down  and  re- 
moving plaintiff's  fence,  evidence  tending  to  show  that  the  plaint- 
iffs were  deprived  of  the  use  of  certain  pasture  land  which  be- 
longed to  the  farm  is  not  admissible,  unless  it  is  specially  pleaded.5 
In  an  action  of  replevin  special  damages  must  be  specially 
pleaded;  a  general  claim  of  damages  will  only  entitle  plaintiff 
to  recover  such  damages  as  are  the  natural  and  immediate  result 
of  defendant's  acts.6 

§  323.  The  rule  in  cases  of  slander  or  libel.— In  actions  for 
libel,  if  plaintiff  seeks  to  recover  special  damages,  such  special 
damages  must  be  set  forth  with  particularity.7  But  if  no  cause 
of  action  is  stated,  an  allegation  of  special  damages  will  be  worth- 
less.8 If  in  an  action  for  slander  the  words  used  are  not  action- 
able in  themselves,  but  the  ground  of  the  complaint  is  that  plaintiff 
has  been  injured  in  respect  to  his  character,  reputation  or  busi- 
ness, he  must  aver  that  the  words  were  spoken  in  reference  to 
one  of  these,  and  special  damages  must  be  alleged.9    If  the  slander 

99  Mo.  310;  Barrett  v.  Western  Union        *  Connoble  v.  Clarke,  38  App.  476. 
TeL  Co.,  42  App.  542.     See  §  307,  ante.        5  Macy  v.  Carter,  67  App.  323. 

1  State  to  usev.  Blackman,  51  Mo.  6  Burkeholder  v.  Rudrow,  19  App.  60. 
319,  '  Hermann  v.  Bradstreet  Co.,  19  App. 

2  Burkeholder  v.  Rudrow,  19  App.  60;  227. 

Dooley  v.  Mo.  Pac.  R.  Co.,  36  App.  381 ;        8  Legg  v.  Dunlevy,  10  App.  461. 
Coontz  v.  Mo.  Pac.  R  Co.,  115  Mo.  669.        9  Curry  v.  Collins,  37  Mo.  324. 

3  Pierce  v.  Carpenter,  65  App.  191. 


1    !  1  THE    PETITION.  [§  324. 

relates  to  the  business  of  plaintiff,  a  diminution  or  loss  of  busi- 
ness may  be  proved,  if  there  is  a  general  allegation  to  that  effect; 
and  it  is  not  necessary  to  name  the  particular  customers  who 
have  ceased  to  do  business  with  the  plaintiff.1  Words  which  are 
not  in  themselves  actionable  when  spoken  of  a  person  in  his  indi- 
vidual character  may  become  so  when  spoken  of  the  person  in 
relation  to  his  employment  or  business.  In  such  case  no  special 
damages  need  be  alleged.  But  to  make  them  thus  actionable, 
when  no  special  damage  is  laid,  the  petition  must  show  on  its 
face  that  the  words  were  spoken  of  the  person  in  relation  to  his 
employment  or  business.  And  there  is  no  distinction  recognized 
by  the  authorities  in  this  respect  between  a  learned  profession 
and  a  mechanical  trade.2  "Where  the  petition  states  that  defend- 
ant sent  to  plaintiff's  customers  a  circular  letter  telling  them  that 
plaintiff  had  no  right  to  make  and  sell  certain  articles  in  which 
he  dealt,  and  alleges  that  such  statement  was  false  and  malicious, 
was  made  with  the  intent  to  injure  plaintiff,  and  that  by  reason 
of  the  letter  plaintiff's  customers  had  ceased  to  buy  from  him, 
thereby  injuring  and  damaging  him  in  his  trade  and  business  and 
property  rights,  it  states  a  good  cause  of  action.3 

§  324.  The  rule  in  cases  of  personal  injury.—  If  the  dam- 
ages are  directly  connected  with  and  incidental  to  the  injury,  a 
general  allegation  that  plaintiff  was  injured  by  reason  of  the 
Avrongful  act  of  defendant,  stating  the  nature  of  the  injury  and 
the  place  of  its  occurrence,  is  all  that  is  necessary  to  permit 
proof  of  such  injuries;  but  when  special  damages  are  claimed, 
as  for  loss  of  services  and  the  incurring  of  medical  bills,  such 
special  damages  must,  in  order  to  allow  proof  of  them,  be  alleged 
in  the  petition.4  Evidence  of  physical  pain  and  mental  anguish 
in  connection  therewith  is  admissible,  though  the  petition  con- 
tains no  special  allegation  as  to  them.5  But  the  amount  of  a 
doctor's  bill,  incurred  in  consequence  of  a  battery,  cannot  be  re- 
covered unless  the  petition  specially  sets  it  out.6  All  the  dam- 
ages recoverable  by  an  infant  for  the  death  of  its  parent  under 
section  2866 7  are  in  the  nature  of  general  damages,  and  need  not 
be  specially  pleaded.8   And  in  an  action  by  the  father  or  mother 

1  Noeninger  v.  Vogt,  88  Mo.  589.  6  Brown  v.  Hannibal  &  St.  J.  R.  Co., 

2  Bray  v.  Callihan,  155  Mo.  43.  99  Mo.  310. 

3  Meyrose  v.   Adams,  12  App.  329.  6  O'Leary  v.  Rowan,  31  Mo.  117. 
Consult  also  §  464,  post.  1  Rev.  Stat.  1899. 

4  Burkeholder  v.  Rudrow,  19  App.  60;  ^Ellingson  v.  Chicago  &  Alton  R. 
Dooley  v.  Mo.  Pac.  R.  Co.,  36  App.  381 :  Co.,  60  App.  679. 

Coontz  v.  Mo.  Pac.  R  Co.,  115  Mo.  669. 


§  325.]  THE  PEAYEE  FOE  BELIEF.  185 

for  the  death  of  a  minor  child  it  is  not  necessary  that  the  peti- 
tion should  contain  an  allegation  of  loss  of  services  in  order  to 
recover  for  them.1 

§  325.  Loss  of  time  and  earnings. —  The  question  whether 
loss  of  time  and  loss  of  earnings  can  be  shown  under  a  general 
allegation  of  loss  or  injury  has  been  repeatedly  before  our  courts, 
and  the  decisions  are  apparently  somewhat  in  conflict.  In  a  case 
against  a  railroad  company,  decided  in  1891,  it  does  not  appear 
what  were  the  precise  allegations  of  the  petition.  The  court, 
however,  declares  the  law  to  be  that  loss  of  earnings  is  a  kind  of 
injury  which  is  not  regarded  as  a  necessary  consequence  of  such 
acts  as  are  complained  of,  and,  therefore,  is  not  embraced  within 
the  plaintiff's  general  allegations  of  damage.  It  is  one  sort  of 
special  damages,  and  consequently  must  in  some  wise  be  counted 
upon  to  constitute  a  basis  for  evidence  on  the  subject.  The  pur- 
pose of  this  rule  is  to  prevent  surprise  and  to  inform  defendant 
of  the  exact  scope  of  plaintiff's  demand.2  The  above  case  was 
decided  by  the  supreme  court  in  banc.  In  1893  the  question 
came  before  division  Xo.  2  in  a  similar  case,  where  the  allega- 
tion in  the  petition  was  that  plaintiff  had  been  permanently  dis- 
abled from  labor.  The  court  holds  that  this  is  the  same  question 
which  was  adjudicated  in  the  Mellor  case,2  and  says  there  is  no 
apparent  difference  with  respect  to  the  allegations  in  the  respect- 
ive petitions,  and  follows  the  ruling  in  the  Mellor  case,  using  this 
language:  "Where  the  damages  are  directlv  connected  with 
and  incident  to  the  injury,  the  general  allegation  that  the  party 
suing  has  been  injured  by  reason  of  the  wrongful  act  of  defend- 
ant, stating  how  injured,  and  when  and  where  it  occurred,  is  all 
that  is  necessary  in  order  to  permit  proof  of  such  injuries;  but 
when  special  damages  are  claimed,  as  for  loss  of  services  and 
medical  bills,  in  order  to  permit  the  introduction  of  evidence  in 
regard  thereto,  they  must  be  alleged  in  the  petition." 3  In  the 
same  year  a  case  came  before  the  same  division  in  which  the  al- 
legation was  that  "the  injury  is  permanent,  and  will  render 
plaintiff  a  cripple  for  life."  That  division  of  the  court  held  that 
evidence  as  to  loss  of  time  and  earnings  was  not  admissible  under 
such  an  allegation,  and  that  an  instruction  covering  that  element 
of  damages  was  erroneous.4 

1  Hennessy  v.  Bavarian  Brewing  Co.,  3Coontz  v.  Mo.  Pac.  R.  Co.,  115  Ma 

14o  Mo.  104.  669,  674. 

-Mellor  v.  Mo.  Pac.  R  Co.,  105  Mo.  4 Slaughter  v.  Metropolitan  Street 

455.  Ry.  Co.,  116  Mo.  269. 


L86  the  petition.  [§§  32(3,  :;27. 

§  326.  In  a  case  which  came  before  the  Kansas  City  court  of 
appeals,  the  petition  contained  a  similar  allegation,  to  wit,  that 
in  consequence  of  the  injuries  plaintiff  was  then,  and  would  be 
for  life,  "  a  oripple  and  invalid,  and  unable  to  work,  and  is  thereby 
compelled  to  abandon  forever  his  ordinary  vocation,  and  is  to- 
tally disabled  and  permanently  injured,  and  left  a  physical  wreck, 
and  has,  from  said  day  until  the  present,  been  unable  to  attend 
to  any  business."  This  allegation  was  held  to  be  sufficiently 
broad  to  allow  for  a  recovery  for  loss  of  time.1  The  next  case  in 
the  supreme  court  was  decided  by  division  No.  1.  There  the 
allegation  was  that  plaintiff,  "  by  reason  of  said  wounds  and  hurts, 
has  suffered  great  pain  and  anguish,  and  has  been  deprived  of 
the  means  of  her  support."  Under  that  allegation  it  was  held 
that  plaintiff  had  the  right  to  give  evidence  of  her  earnings  in 
the  usual  course  of  her  business.2  The  next  case  in  the  supreme 
court  was  decided  by  division  ISTo.  2.  It  is  that  of  Britton  v.  St. 
Louis?  The  allegation  there  was  that  the  injuries  were  such  as 
to  permanently  impair  the  future  use  of  plaintiff's  leg;  that  they 
disabled  him,  caused  his  confinement  in  bed  and  for  a  long  time 
in  the  house,  and  incapacitated  him  for  work  and  labor  ever  since ; 
that  besides  loss  of  time  he  was  put  to  great  expense  in  the  treat- 
ment of  the  injuries  incurred.  There  it  was  held  that,  as  no  ob- 
jection was  made  to  the  admission  of  evidence  showing  that  he 
was  a  day  laborer,  depending  on  his  work  for  a  living,  the  ob- 
jection that  the  pleading  was  not  sufficient  to  warrant  an  instruc- 
tion that  he  might  recover  for  loss  of  time  came  too  late,  the 
court  adding:  "The  allegation,  while  indefinite,  is  sufficient  no- 
tice of  his  claim  for  damages  for  loss  of  time  as  one  of  the  con- 
sequences resulting  from  his  injury."  (p.  410.)  And  the  above 
case  of  Smith  v.  Railroad  Co.2  is  cited  as  an  authority.4 

§  327.  In  1891,  in  a  case  also  before  division  No.  2,  the  aver- 
ment, following  the  statement  that  plaintiff's  thigh  and  leg  were 
crushed,  was  "  that,  by  reason  of  said  injuries,  plaintiff  had  suf- 
fered great  bodily  and  mental  anguish,  and  has  been  unable  to 
follow  his  business,  or  to  perform  any  kind  of  labor."     It  was 

1  Loe  v.  Chicago,  R.  L  &  Pac.  R  Co.,  two  authorities  last  cited  is  in  any 
57  App.  350.  way  repugnant  to  the  current  of  de- 

2  Smith  v.  Chicago  &  Alton  R  Co.,  cisions.  since  the  failure  of  defendant 
110  Mo.  246.  in  each  of  them  to  object  to  the  evi- 

3 120  Mo.  437.  dence    furnished  a  sufficient  reason 

4  On  the  same  ground  a  like  allega-  for   affirming   the  judgment  of  the 

tion  was  held  sufficient  in  Golden  v.  court  below. 

Clinton,  54  App.  100.   Neither  of  these 


§  327.]  THE  PRATER  FOR  RELIEF.  1ST 

held  that  under  this  allegation  plaintiff  was  properly  permitted 
to  show  the  effect  which  the  injury  had  on  his  capacity  and  abil- 
ity to  follow  his  business,  and  to  perform  any  kind  of  labor. 
And  it  is  said  by  the  court  that  neither  the  case  of  Slaughter  v. 
Railroad?  nor  that  of  Coontz  v.  Railroad?  is  in  conflict  with  the 
decision.3  In  the  same  year  the  question  came  again  before  the 
court,  this  time  in  division  ISTo.  1.  The  statement  of  the  dam- 
ages in  that  case  was  as  follows :  "  Whereby  he  has  been  per- 
manently disabled  from  performing  labor,  and  has  been  made  a 
cripple  for  life,  has  suffered  great  pain  of  mind  and  body,  and  he 
is  unfitted  for  carrying  on  his  vocation,  and  he  has  lost,  and  will 
lose,  the  earnings  of  his  labor."  This  was  followed  by  a  general 
allegation  of  damages.  The  court  held  that  the  petition  clearly 
counts  specially  on  the  loss  of  earnings  as  an  element  of  damages, 
and  that  it  is  not  necessary  to  allege  the  quantum  of  such  dam- 
age. There  can  be  no  question  of  the  correctness  of  this  decision, 
since  special  damages  were  clearly  alleged.  But  the  court,  after 
citing  the  Mellor  case,  adds  that  "  it  is  clearly  inferable  from  these 
decisions  that  evidence  of  damages  for  loss  of  earnings  is  admis- 
sible under  a  general  averment  of  such  loss;4  a  dictum  which  it 
is  not  easy  to  reconcile  with  the  preceding  decisions.  In  Bartley 
v.  Trorlicht?  the  St.  Louis  court  of  appeals  holds  that  the  above 
cited  case  of  Mellor  v.  Railroad,6  and  the  cases  which  follow  it 
as  an  authority,  are  applicable  only  where  it  is  sought  to  recover 
past  earnings,  but  that  the  rule  does  not  extend  to  a  case  of  loss 
of  future  earnings,  that  is,  to  the  damages  which  may  be  sup- 
posed to  accrue  from  an  impaired  earning  capacity  through  a 
total  or  partial  disability."  "  It  has  never  been  the  practice," 
says  Thompson,  J.,  "in  drawing  petitions  in  actions  for  damages 
for  personal  injury  in  this  state,  to  make  special  allegations  as  to 
the  damages  which  will  accrue  from  the  diminution  of  the  future 
earning  capacity  of  the  plaintiff,  or  the  person  injured,  in  order 
to  let  in  evidence  of  such  an  element  of  damage,  or  in  order  to 
warrant  the  jury  in  giving  damages  under  that  head.  The  two 
Missouri  cases  cited  by  the  supreme  court  in  the  Mellor  case,  in 
support  of  the  proposition,  are  both  cases  for  past  damages." 
(p.  219.)7 

1116  Mo.  269.  »49  App.  214. 

'-'  115  Mo.  669.  6 105  Mo.  455. 

3Gurley  v.  Mo.  Pac.  R.  Co.,  122  Mo.  7The   two   cases   referred   to   are 

141,  151.  O'Leary  v.   Rowan,  31  Mo.  117,  and 

4  Ger  !es  v.  Christopher  Arch.  Iron  &  State  to  use  v.  Blackrnan,  51  Mo.  319. 
Foundry  Co.,  124  Mo.  347,  360. 


1SS  THE    PETITION.  [§§  328-331. 

§  32S.  "Where  plaintiff  made  a  contract  with  the  defendant  to 
come  from  Tennessee  to  Missouri  to  work  on  defendant's  farm 
in  the  latter  state,  and  there  was  a  breach  of  the  contract  by  de- 
fendant, plaintiff  may  recover  for  loss  of  time  and  the  actual 
expenses  incurred  in  coming  to  Missouri,  though  there  is  no  spe- 
cific allegation  of  such  damages.1 

§  329.  In  cases  of  permanent  injury. —  That  it  is  not  neces- 
sary, in  order  to  admit  evidence  that  the  injuries  sustained  were 
permanent,  to  allege  that  fact,  is  well  settled.2  And  this  rule  has 
a  special  application  where  the  action  is  for  an  injury  to  a  minor.3 
"Where  the  injury  is  permanent,  and  future  pain  reasonably  cer- 
tain, a  general  allegation  of  damages  is  sufficient  to  authorize 
recovery  for  future  pain  of  body  and  mind.4  Even  if  it  were 
necessary  to  plead  that  the  injuries  were  permanent,  it  is  not 
necessary  to  do  so  in  specific  terms,  provided  that  the  petition 
when  taken  as  a  whole,  and  fairly  construed,  contains  allegations 
covering  such  injuries  with  sufficient  clearness.5 

§  330.  Stating  tlie  quantum  of  damages  in  personal-injury 
cases. —  As  is  stated  above,6  it  is  not  necessary  to  allege  the  loss 
of  a  certain  amount  of  earnings,  nor  that  a  certain  amount  was 
expended  for  medicines;  it  is  sufficient  to  allege  such  loss  and 
expenditure  generally.7  In  fact,  the  measure  of  damages  need 
never  be  set  forth.8 

§  331.  Damages  actual  and  exemplary. —  The  statement  of  a 
conversion  with  the  additional  averment  that  it  was  done  under 
such  circumstances  as  afforded  grounds  for  exemplary  damages 
is  not  a  statement  of  two  causes  of  action.9  In  the  absence  of  a 
statutory  provision,  it  is  not  necessary  to  state  separately  the 
actual  and  exemplary  damages  sought  to  be  recovered.10  But  in 
1895  it  was  enacted  that  where  exemplary  or  punitive  damages 
are  recoverable,  the  petition  must  state  separately  the  amount 
of  each  kind  of  damages  sought  to  be  recovered,  and  the  amount 
of  each  kind  must  be  separately  stated  in  the  verdict.11    Since  the 

i  Moore  v.  Mountcastle,  72  Mo.  605.        6  gee  §  327,  p.  187. 

2  Lewis  v.  Independence,  54  App.  7  Cooney  v.  Southern  El.  R.  Co.,  80 
183;  Golden  v.  Clinton,  54  App.  100;    App.  226. 

Gerdes  v.  Christopher  Simpson  Co.,  8St.  Louis  Trust  Co.  v.  Bambrick, 

124  Mo.  347.  149  Mo.  560.    See  also  §  319,  ante. 

3  Bartley  v.  Trorlicht,  49  App.  214;  9  Peckham  v.  Lindell  Glass  Co.,  9 
Schmitz  v.  St  L,  L  M.  &  S.  R.  Co.,  119  App.  459. 

Mo.  256.  10Lamberson  v.  Long,  66  App.  253; 

4  Gerdes  v.  Christopher  Simpson  Co.,    Hilbrant  v.  Donaldson,  69  App.  92. 
124  Mo.  347.  U  Rev.  Stat  1899,  sees.  594,  595. 

6  Lewis  v.  Independence,  54  App.  183. 


§  331.]  THE  PKATEK  FOR  BELIEF.  189 

adoption  of  that  act,  punitive  damages  cannot  be  recovered  un- 
less the  petition  is  drawn  in  conformity  with  the  act;  and  if  the 
petition  contains  no  statement  as  to  exemplary  damages,  evi- 
dence of  the  pecuniary  circumstances  of  the  defendant  is  not 
admissible.1  The  rule  is  that  matters  of  aggravation  do  not 
constitute  a  part  of  the  cause  of  action,  and  need  not  be  specially 
pleaded.2  If  the  facts  alleged  in  the  petition  make  out  a  case 
entitling  plaintiff  to  exemplary  damages,  it  is  immaterial  that 
the  petition  does  not  use  the  word  "  malice  "  in  describing  the 
offense  charged.3 

1  Berry  man  v.  Cox,  73  App.  67.  8  Lyddon  v.  Dose,  81  App.  64 

2  Pierce  v.  Carpenter,  65  App.  19L 


CHAPTER  XV. 


THE  RULES  GOVERNING  PETITIONS  APPLIED  TO  VARIOUS  ISSUES 
AND  PROCEEDINGS. 


335. 
336. 

337. 


§  332.  Pleading  breach  of  duty.               §  373. 
333.  Pleading  fraud. 

334  The  charge  of  fraud  must  be  374. 
specific. 

Pleading  malice.  375. 

Action  by  or  against  legal  rep-  376. 

resentative.  377. 

Suit  to  recover  debt.  379. 

338.  Suit  on  lost  instrument. 

339.  Account  stated.  380. 

340.  Accounting.  381. 

341.  Arbitration  and  award.  382. 

342.  Assault.  383. 

343.  Assumpsit  384 

344.  Assumpsit —  Money  had  and  re- 

ceived. 385. 

345.  Assumpsit  —  Use  and  occupa- 

tion. 386. 

346.  In  actions  on  bills  and  notes.  387. 
349.  Bills  and  notes  —  Stating  the  388. 

consideration. 

Bills  and  notes  —  Stating  the  389. 
date. 

Action  on  lost  note.  390. 

Action  on  note  to  partnership.  391. 

Action  against  indorser. 

Alleging  acceptance.  392. 

Demand  and  notice.  394. 

Action  on  assigned  note. 

Action  on  bond.  395. 

Bonds  other  than  for  the  pay-  396. 

ment  of  money.  397. 

363.  Bond    executed    in    assumed  398. 

name.  399. 

Action  on  attachment  bond.  400. 

Actions  against  carriers.  401. 

Same  —  Averment  that  defend- 
ant is  a  common  carrier.  403. 

367.  Same  —  Alleging  negligence. 

368.  Same  — Action    by   passenger.  404 

369.  Actions  on  contract.  405. 


350. 

351. 
352. 
353. 
355. 
356. 

359. 

360. 
362. 


364 
365. 
366. 


Contracts  —  Stating   the    con- 
sideration. 
Where  the  contract  has  been 

modified. 
Contracts  —  Quantum   meruit. 
Contracts  —  Illustrations. 
In  actions  for  conversion. 
Action  by  or  against  corpora- 
tion. 
Action  for  breach  of  covenant. 
For  breach  of  warranty  in  sale. 
Actions  under  the  damage  act. 
In  suits  for  divorce. 
Petition  for  admeasurement  of 

dower. 
Action    against    dram-shop 

keeper. 
In  actions  of  ejectment. 
Ejectment  —  Description. 
Actions  against  judges  of  elec- 
tion. 
Proceeding  to  enforce  an  es- 
cheat. 
Action  on  a  guaranty. 
Action  between  husband  and 

wife. 
Actions  on  policies  of  insurance. 
Insurance —  Allegation  of  own- 
ership. 
Insurance  —  Alleging  value. 
Action  upon  accident  policy. 
Action  on  benefit  certificate. 
Proceeding  for  an  injunction. 
Action  on  judgment. 
Reviewing  the  judgment. 
Action  between  landlord  and 

tenant. 
Actions  for  malicious  prosecu- 
tion. 
For  malicious  attachment. 
Actions  for  malpractice. 


;§  332,  333.] 


FOREGOING   KULES   APPLIED. 


191 


§  406.  Breach  of  promise  of  marriage. 

407.  Actions    between  master  and 

servant  —  For  services. 

408.  Master  and    servant  —  Injury 

to  employee. 

409.  Same — By  defective  appliances. 

410.  Same  —  By  an  incompetent  fel- 

low-servant. 

411.  Liability  of  employer  for  em- 

ployee's act. 

412.  Action  to  enforce  a  mechanic's 

lien. 
415.  Proceeding  to  foreclose  a  mort- 
gage. 

417.  Suits  by  or  against  municipal 

corporations. 

418.  Same  —  Action  on  concession. 

419.  Same  —  Suit  by  officer. 

420.  Same  —  For  personal  injuries. 

421.  In  actions  based  on  negligence. 
423.  Same  —  Various  negligent  acts 

may  be  set  forth. 

425.  Same — Showing  connection  be- 

tween the  negligence  and  the 
injury. 

426.  Same  —  Violation  of  ordinance. 

427.  Negligence  —  Further  illustra- 

tions. 
435.  Actions  under  the  damage  act. 

437.  Pleading    contributory    negli- 

gence. 

438.  Actions  for  nuisance. 

439.  Same  —  For  continuing  a  nui- 

sance. 

440.  Actions  by  and  against  officers. 

441.  Actions  on  official  bonds. 

442.  Same  —  On  bond  of  sheriff  or 

constable. 

443.  Same  —  Of  executor  or  admin- 

istrator. 


§  444  Same  —  Of  county  collector  or 
clerk. 

446.  Suit  involving  partnership. 

447.  Proceeding  to  recover  a  pen- 

alty. 

448.  Same  —  Penalty  stipulated  for 

in  contract. 

449.  Action  between  principal  and 

agent. 

450.  Action  between  sureties. 

451.  Actions  on  public  securities. 

452.  Actions  against  railroad  com- 

panies. 

453.  Same  —  Failure  to  comply  with 

statute  or  ordinance. 

454.  Same  —  Failing  to  fence. 

455.  Same  —  Failure   to    maintain 

ditches. 

456.  Same  —  For  setting  fires. 

457.  Same  —  To  recover  penalties. 

458.  Same  —  Where  road  is  leased. 

459.  Same  —  Wrongful    appropria- 

tion of  land. 

460.  Action  of  replevin. 

462.  Actions  for  slander  or  libel. 

463.  Same  —  Further  rules. 

464.  Same  —  Alleging  the  damages. 

465.  Same  —  Averring  malica 

466.  Same  —  The  innuendo. 
469.  Same  —  The  colloquium. 

471.  Illustrations  as  to  the  innuendo 

and  colloquium. 

472.  Slander  of  title. 

473.  Actions  for  delinquent  taxes. 

474.  Same  —  By  municipality. 

475.  Actions  on  special  tax-bills. 

477.  Actions  for  a  tort. 

478.  Actions  for  trespass. 

479.  Actions  for  mesne  profits. 

480.  Action  for  waste. 


§  332.  Pleading  breach  of  duty. —  When  a  suit  is  for  a  breach 
of  duty  the  facts  out  of  which  the  duty  arises  must  be  set  forth.1 

§  333.  Pleading  fraud. —  In  an  action  based  upon  fraudulent 
representations  there  must  be  an  averment  of  the  scienter.  And 
a  pleading  which  avers  no  more  than  that  the  representations 
were  untrue,  without  charging  that  they  were  knowingly  untrue 
or  fraudulently  made,  is  bad.2    If  the  action  is  one  for  deceit,  and 


i  Field  v.  Chicago,  R.  I.  &  P.  R.  Co.,  76  Mo.  614    2  Fenwick  v.  Bowling,  50  App.  51G. 


19:3  tiie  petition.  [§§  334,  335. 

the  petition  docs  not  allege  an  intent  to  deceive,  but  contains 
only  a  general  allegation  of  fraud,  it  fails  to  state  a  cause  of  ac- 
tion.1 Hut  if  the  petition  alleges  that  the  statement  made  by 
the  defendant  was  false,  and  was  fraudulently  made,  the  scienter 
is  sufficiently  averred.2  A  petition  alleged  that  defendant,  in- 
tending to  deceive  and  defraud  plaintiff,  falsely  and  fraudulently 
represented  that  the  maker  of  a  note  was  solvent,  while  in  fact 
he  was  insolvent,  and  his  insolvency  was  known  to  the  defend- 
ant, and  that  the  plaintiff,  relying  upon  the  truth  of  the  repre- 
sentation, received  the  note  and  paid  a  valuable  consideration  for 
it.     It  was  held  that  the  petition  stated  a  good  cause  of  action.3 

§334.  Tlie  charge  of  fraud  must  he  specific. —  A  general 
allegation  of  fraud  is  not  sufficient:  the  facts  constituting  the 
fraud  must  be  set  out  in  detail;4  nor  is  it  sufficient  that  plaintiff 
alleges  his  belief  in  the  existence  of  fraud:  there  must  be  a  di- 
rect  charge  of  fraud.8  Thus,  it  is  not  sufficient  to  allege  that 
plaintiff  is  informed  and  believes  that  a  judgment  debtor  trans- 
ferred his  property  to  another  for  the  purpose  of  defrauding  and 
delaying  his  creditors;  he  must  aver,  charge  such  to  be  the  fact.6 
"Where  the  petition  states  that  defendant,  by  means  of  family 
relations  shown  to  exist,  had  the  trust  and  confidence  of  his 
principal,  and  by  reason  of  the  existence  of  these  circumstances 
had  profited  by  acts  which  were  hostile  to  his  principal's  inter- 
est and  gained  advantages  by  acts  of  treachery  and  bad  faith 
towards  his  principal,  of  which  the  principal  was  wholly  igno- 
rant, it  states  a  good  cause  of  action.7 

§  335.  Pleading  malice. —  Where  malice  is  an  essential  in- 
gredient of  an  action,  it  need  not  be  charged  in  express  terms  if 
it  is  necessarily  inferred  from  the  facts  stated  in  the  petition.8 
The  rule  is  that  if  the  facts  alleged  in  the  petition  make  out  a 
case  of  malice,  it  is  not  necessary  to  use  the  word  "malice"  in 
describing  the  offense,  since  the  term  imports,  according  to  its 
legal  signification,  nothing  more  than  that  the  act  is  wilful  or 
intentional.9    But  if  the  petition  contains  a  general  charge  of 

1  Redpath  v.  Lawrence,  42  App.  101.        6  Nichols-Shepard  Co.  v.  Hubert,  150 

2  Arthur  v.  "Wheeler  &  Wilson  Mfg.    Mo.  620. 

Co.,  12  App.  335.  7  Williams  v.  Gerber,  75  App.  18. 

3  Jamison  v.  Copher,  35  Mo.  483.  This  subject  is,  however,  more  fully 

4  First  Nat.  Bank  v.  Rohrer,  138  Mo.  discussed  in  chapter  VIL  See  §§  151- 
369;  Goodson  v.  Goodson,  140  Mo.  206.  160. 

5  Wilkinson  v.  Goodin,  71  App.  394;  8  Sloan  v.  Speaker,  63  App.  321;  Lin- 
Nichols-Shepard   Co.   v.   Hubert,   150  ville  v.  Rhoades,  73  App.  217. 

Mo.  620.  »Lyddon  v.  Dose,  81  App.  64. 


§§  336-338.]  FOREGOING    KTTLES    APPLIED.  193 

malice,  and  then  goes  on  to  state  the  specific  facts  constituting 
the  malice,  and  such  facts  do  not  in  law  constitute  malice,  the 
petition  is  demurrable.1 

§  336.  Action  by  or  against  legal  representative. —  In  an  ac- 
tion brought  by  an  administrator  to  recover  rent  of  the  real  es- 
tate of  his  intestate,  which  real  estate  had  been  leased  by  the 
administrator,  it  is  not  necessary  that  the  petition  should  show 
that  he  was  authorized  by  the  proper  court  to  lease  the  land.2 
If,  in  an  action  against  an  administrator,  the  petition  sets  forth 
facts  from  which  it  is  apparent  that  any  judgment  rendered 
against  defendant  ought  to  be  satisfied  only  out  of  the  interest 
of  the  estate  of  the  testator  in  the  effects  of  a  certain  partner- 
ship, the  petition  must  set  forth  the  interest  in  the  partnership, 
and  must  allege  that  upon  a  settlement  of  the  administration  of 
the  partnership  assets  there  is  likely  to  be  a  surplus.3 

§  337.  Suit  to  recover  debt.— The  petition  in  an  action  to  re- 
cover a  debt  must  contain  an  allegation  that  the  debt  sued  for 
was  due  when  the  suit  was  begun.4  So,  where  plaintiff  brought 
an  action  against  a  guarantor  to  recover  for  goods  sold  to  the 
person  in  whose  behalf  the  guaranty  was  made,  if  the  petition 
does  not  either  directly  or  by  necessary  inference  charge  that 
the  guaranteed  debt  was  due  when  the  action  was  commenced, 
it  is  fatally  defective.5 

§338,  Suit  on  lost  instrument, —  An  action  may  be  main- 
tained on  any  instrument  of  writing,  notwithstanding  it  has  been, 
lost  or  destroyed;  and  it  is  sufficient  for  plaintiff  to  allege  the 
loss  or  destruction  as  an  excuse  for  not  filing  it.6  This  provision 
also  applies  to  a  defense  on  a  lost  instrument.6  The  allegation 
of  the  loss  or  destruction  of  the  writing  is  not  inconsistent  with 
a  recovery  upon  the  writing.7  It  would  seem  that  this  section 
has  no  application  to  the  case  of  a  lost  certificate  of  stock.8  It  does 
not  apply  where  the  contract  was  executed  in  duplicate,  and  only 
one  of  the  copies  has  been  destroyed.9 

1  Dritt  v.  Snodgrass,  66  Mo.  286.    See        5  Bauman  Jewelry  Co.  v.  Bertig,  81 
also  §§  403,  404,  post.  App.  393. 

2  Rector  v.  Ranken,  1  Mo.  371.  6  Rev,  gtat.  1899,  sec.  642. 

3  Roberts  v.  Garesche,  8  App.  592.  '  Bank  of  Commerce  v.  Hoeber,  8 
The  requisites  of  a  bill  in  equity    App.  171,  176. 

against  a  legal  representative  to  set  8  Keller  v.  Eureka  Brick  Machine 

aside  his  settlement  or  to  charge  him  Co.,  43  App.  84. 

with  waste  will  be  found  in  §  483,  infra.  :' Matthews  v.  Union  Pac.  R.  Co.,  66 

4  Wright  v.  Bankers' MutF.  Ins.  Co.,  App.  663.     See  also  §  351,  post;  also 
73  App.  365.  ch.  XVII. 

Mo.  Code  Pi 13 


194  the  petition.  [§§  339-343. 

§  339,  Account  stated. —  As  an  account  stated  means  in  Law 
that  the  parties  have  had  an  accounting-  together,  have  agreed 
upon  a  balance  owing  by  one  to  the  other,  and  that  the  one 
owing  the  balance  has  agreed  to  pay  it  to  the  other,  a  petition 
declaring  on  an  account  stated  must  allege  these  essential  ele- 
ments; otherwise  it  is  fatally  defective.1  There  must  be  at  least 
an  averment  of  defendant's  assent  to  the  settlement  or  to  the 
balance  stated.2  And  the  petition  must  contain  an  allegation 
that  defendant  promised  to  pay  the  balance  found  to  be  clue.3 
An  allegation  that  plaintiff  and  defendant  "  have  had  account- 
ings and  settlements  "  is  not  an  averment  of  an  account  stated.4 
The  statement  that  the  account  was  presented  to  defendant  by 
plaintiff,  and  was  after  some  months  returned  without  objection, 
is  a  statement  of  merely  evidential  facts,  which  does  not  supply 
the  place  of  the  averment  that  both  parties  agreed  to  the  account.5 

§  340,  Accounting. —  In  a  proceeding  for  an  accounting  be- 
tween partners  the  petition  must  either  state  or  pray  for  an  ac- 
count.6 

§  341.  Arbitration  and  award. —  Where  there  has  been  an 
arbitration,  and  the  party  in  whose  favor  the  award  is  made 
brings  an  action  thereon,  he  need  only  set  out  so  much  of  the 
award  as  shows  his  right  to  recover;  if  there  is  anything  in  the 
award  constituting  a  defense,  defendant  must  plead  it.7 

§  342.  Assault. —  A  petition  in  an  action  for  an  assault  and 
battery  is  sufficient  if  it  charges  that  the  assault  and  battery 
were  unlawfully  done  in  a  rude,  angry  and  insolent  manner;  and 
it  is  not  necessary  to  separate  the  strikings  and  make  each  a 
separate  cause  of  action.8 

§343.  Assumpsit. —  It  seems  to  be  the  doctrine  in  Missouri 
that  a  petition  in  assumpsit  for  money  had  and  received  is  not 
good  if  it  omits  to  allege  that  defendant  promised  to  pay  the 
money  to  plaintiff.9  Though  the  promise  is  implied  by  the  law, 
yet  it  must  be  pleaded  in  the  petition  as  a  fact.10  But  the  more 
recent  decision  of  the  court  of  appeals,  that  it  is  not  necessary 
to  expressly  plead  the  promise,  must,  I  think,  be  considered  as 

Davis  v.  Boswell,  77  App.  294  6  Pope  v.  Salsman,  35  Mo.  362.    See 

2  Van  Blarcom  v.  Donovan,  16  App.  §  481,  post. 

535.  7  Finley  v.  Finley,  11  Mo.  624. 

a  Bam  brick  v.  Simms,  102  Mo.  158;  8,Sloan  v.  Speaker,  63  App.  321. 

Lustig  v.  Cohen,  44  App.  271.  9  Gamage  v.  Bushell,  1  App.  416. 

*  Ward  v.  Farrelly,  9  App.  370.  10  Cape  Girardeau  &  State  Line  R. 

6  Brown  v.  Kimmel,  67  Mo.  430,  432.  Co.  v.  Kimmel,  58  Mo.  83. 
See  also  McKeen  v.  Boatmen's  Bank, 
74  App.  281. 


§  343.]  FOREGOING   KULES    APPLIED.  195 

more  correctly  stating  the  modern  doctrine.1  Under  the  com- 
mon law  in  an  action  of  assumpsit  it  was  essential  that  the  peti- 
tion should  contain  an  allegation  that  the  defendant  promised, 
because  therein  was  the  distinguishing  feature  of  that  form  of 
action.  It  was  a  suit  based  upon  a  promise,  and  unless  a  promise 
was  alleged  the  pleader  was  condemned  as  pursuing  the  wrong 
remedy.  But  as  under  the  Code  these  particular  forms  of  ac- 
tions and  legal  fictions  are  abolished,  the  pleader  is  required  only 
to  state  the  facts.  And  the  decisions  in  the  code  states  are 
quite  uniform  that  the  promise  need  not  be  in  terms  alleged,  if 
from  the  facts  which  are  alleged  a  promise  is  implied.  Especially 
is  this  so  in  view  of  the  statutory  provision  that  no  allegation 
shall  be  made  in  a  pleading  which  the  law  does  not  require  to 
be  proved.2  The  promise  is  an  allegation  of  fact  in  assumpsit 
which  is  not  required  to  be  proved.  In  JSTew  York,  where  the 
Missouri  Code  originated,  it  is  held  that  the  promise  need  not  be 
averred.  Thus,  the  supreme  court  of  that  state  says:  "It  is  no 
longer  necessary,  and  perhaps  not  even  proper,  for  the  plaintiff 
to  allege  in  his  complaint  any  promise  on  the  part  of  the  de- 
fendant, but  he  must  state  facts  which,  if  true,  according  to  well 
settled  principles  of  law  would  have  authorized  him  to  allege, 
and  the  court  to  infer,  a  promise  on  the  part  of  the  defendant 
before  the  Code.  The  form  of  assumpsit  is  no  longer  necessary, 
or  perhaps  even  proper,  in  such  a  case ;  but  facts  sufficient  to 
raise  it,  and  to  put  it  on  paper,  were  it  lawful  to  do  so,  are  still 
necessary." 3  And  that  view  has  also  met  the  approbation  of  the 
court  of  appeals  of  New  York.  In  Farron  v.  Sherwood*  that 
court  says :  "  It  was  not  necessary  to  state  in  terms  a  promise 
to  pay ;  it  was  sufficient  to  state  facts  showing  the  duty  from 
Avhich  the  law  implies  a  promise.  That  complies  with  the  re- 
quirement that  the  facts  must  be  stated  constituting  the  cause 
of  action."  (p.  230.)  I  have  noticed  two  decisions  of  the  supreme 
court  of  Indiana  in  which  the  same  position  is  taken,5  and  one 
by  the  supreme  court  of  California.6 

1  First  Nat.  Bank  v.  Landis,  34  App.  justify  the  inference  of  a  promise,  the 
433.  pleading  will  be  bad. 

2  Rev.  Stat.  1899,  sec.  610.  «Wilkins  v.   Stidger,   22    Cal.   231. 

3  Cropsey  v.  Sweeney,  27  Barb.  310,  I  cannot  forbear  giving  here  an  illus- 
312.  tration  of  the  absurdity  of  alleging  a 

4 17  N.  Y.  227.  promise  in  these  cases,  which  illustra- 

5Gwaltney  v.  Cannon,  31  Ind.  227;  tion  I  take  from  the  debates  in  the 

Wills  v.  Wills,  34  Ind.  106.     In  the  New  York  Constitutional  Convention 

case  last  cited  it  is  stated  that,  if  the  upon  the  question  of  adopting  a  Code 

pleader  omit  any   fact    essential   to  of  Civil  Procedure,  under  which  pro- 


196 


THE   PETITION. 


[§§  344,  345. 


§  344.  Assumpsit  —  Money  had  and  received. —  It  is  permis- 
sible under  the  Code  to  frame  a  petition  for  money  had  and  re- 
ceived in  accordance  with  the  common-law  form.1  In  an  action 
for  money  had  and  received  the  petition  must  show  the  source 
from  which  the  money  was  received.2  Where  the  action  is  for 
money  had  and  received  on  a  contract  for  the  purchase  of  land, 
which  the  other  contracting  party  is  unable  to  convey,  the  peti- 
tion must  set  out  the  nature  and  extent  of  such  inability.8 

£  345.  Assumpsit  —  Use  and  occupation. —  In  an  action  to 
recover  for  use  and  occupation  of  premises  it  was  alleged  that 
defendant  used  and  occupied  the  premises  for  a  certain  period, 
thereby  becoming  the  tenant  of  plaintiff,  and  indebted  to  him 
for  the  use  and  occupation  in  such  sum  as  the  premises  were 
worth,  stating  that  sum;  and  this  petition  was  held  to  be  suffi- 
cient.4 It  is  not  necessary  to  allege  that  any  right  to  compensa- 
tion was  reserved  by  the  plaintiff.5 

tion,  80  App.  1.  Without  citing  any 
cases,  which  lack  of  space  forbids,  I 
may  say  that  the  courts  of  many  of 
the  code  states  support  this  position. 
A  number  of  these  cases  will  be  found 
collected  in  Pomeroy  on  Remedies 
and  Remedial  Rights,  sec.  542.  I  am, 
however,  free  to  express  the  opinion 
that  this  constitutes  a  radical  depart- 
ure from  the  reform  intended  by  the 
Code,  and  that  the  remarks  of  Valen- 
tine, J.,  in  his  dissenting  opinion  in 
Emslie  v.  Leavenworth,  20  Kan.  571, 
are  eminently  just.  Notwithstanding 
the  volume  of  precedent  to  the  con- 
trary, the  time  is  coming  when  the 
courts  in  the  code  states  must  aban- 
don all  mere  forms  which  have  been 
inherited  from  the  common  law,  how- 
ever deeply  they  may  be  encrusted 
with  the  barnacles  of  age.  And  this 
is  especially  so  where  the  common- 
law  forms  compel  the  pleader  to  al- 
lege an  untruth.  And  the  sooner  that 
day  comes,  the  better  for  the  cause  of 
justice.    See  also  §  343,  ante. 

2Gamage  v.  Bushell,  1  App.  416. 

sPhillipson  v.  Bates,  2  Mo.  116. 

4  Walker  v.  Mauro,  18  Mo.  5C4. 

6  Allen  v.  Wabash,  St.  Louis  &  Pac. 
R.  Co.,  84  Mo.  646. 

A  decision  involving  the  question 


vision  of  the  constitution.then  drafted, 
the  New  York  Code  was  enacted.  The 
speaker  said :  "For  instance,  if  one  were 
to  rob  another  of  his  watch,  the  forms 
of  proceeding  at  the  common  law 
wouM  allow  the  person  robbed  to 
waive  the  force  and  to  bring  an  action 
for  the  value  of  the  watch,  as  upon  a 
purchase.  He  could  charge  that  on  a 
certain  day  he  sold  and  delivered  to 
the  defendant  a  certain  watch,  in  con- 
sideration whereof  he  then  promised 
to  pay,  when  he  should  be  thereto  re- 
quested, as  much  as  such  watch  was 
reasonably  worth,  and  that  it  was  rea- 
sonably worth  §250.  The  defendant 
would  answer  non  assumpsit  —  that  he 
did  not  so  promise.  Every  word  in  the 
declaration  would  be  false,  and  the 
plea  would  be  manifestly  true.  And 
yet  there  was  no  judge  in  the  land 
who  would  not  instruct  the  jury  that, 
though  this  was  a  very  outrageous 
act,  the  party  whose  watch  it  was  had 
the  right  to  waive  the  wrong,  and  to 
have  twelve  men  say  on  their  oaths 
that  the  defendant  did  promise  to  pay 
what  the  watch  was  reasonably  worth, 
and  that  their  verdict  must  be  for  the 
plaintiff."  See  Report  of  Code  Com- 
missioners, Pt.  I,  p.  70. 

1  Pipkin  v.  National  Loan  Associa- 


§§  346-349.]  FOREGOING    RULES    APPLIED.  197 

§  346.  In  actions  on  bills  and  notes. —  A  petition  on  a  prom- 
issory note  is  sufficient  if  it  sets  out  with,  appropriate  averments 
the  execution  of  the  note  by  defendant  and  its  non-paj'ment  at 
maturity.1  It  is  proper  to  allege  that  the  party  made  his  note 
and  thereb}T  promised  to  pay,  although  on  its  face  the  note  ap- 
pears to  have  been  executed  by  the  defendant  as  agent  for  others.2 
So,  if  the  note  is  signed  "  Steamboat  Lee  and  owners,  by  "W"., 
Captain,"  the  petition  is  sufficient  if  it  avers  that  the  defendants 
were  bound,  without  stating  the  facts  upon  which  the  liability 
depended.3  It  is  not  necessary  to  allege  by  what  name  the  party 
bound  himself;  it  is  sufficient  to  state  the  obligation  generally, 
leaving  the  particular  manner  of  it  to  the  proof.4 

§  347.  A  petition  is  not  good  if  it  fails  to  allege  that  the  note 
has  matured  and  that  the  plaintiff  is  the  owner  or  holder  of  it, 
or,  if  it  is  payable  to  bearer,  that  he  is  the  bearer.5  The  petition 
need  not  state  in  terms  that  the  note  was  delivered,  if  it  describes 
the  note  and  states  that  by  it  the  defendant  promised  to  pay.6  A 
petition  which  alleges  that  A  and  B  made  their  note  to  A,  and 
that  the  note  was  delivered  to  plaintiff  for  a  valuable  considera- 
tion, whereby  plaintiff  became  the  owner  of  the  note,  without 
showing  that  the  delivery  was  by  an  authorized  person,  is  not 
good.7 

§  348.  A  petition  on  a  promissory  note  substantially  alleged 
that  the  defendant  L.  made  his  promissory  note,  by  which  he 
promised  to  pay  to  the  order  of  plaintiff,  etc.,  and  that  at  the 
making  of  the  said  note  the  defendant  B.  indorsed  the  same  on 
the  back,  and  thereby  became  a  maker  of  the  said  note  with  the 
said  L.  It  was  held  that  such  petition  contained  sufficient  facts 
to  warrant  a  judgment,  not  only  against  L.  but  as  well  against  B., 
though  under  the  common-law  action  of  assumpsit  an  express 
allegation  that  B.  thereby  promised  to  pay,  etc.,  was  required.8 

§340.  Bills  and  notes  —  Stating  the  consideration. —  The 
statute  provides  that  all  instruments  of  writing  made  and  signed 
by  any  person  or  his  agent,  whereby  he  shall  promise  to  pay  to 

when  an  action  of  quantum  meruit  is  due.    Wright  v.  Bankers'  Ins.  Co., 

will  lie  will  be  found  in  §  375,  post.  73  App.  365;  Baunian  Jewelry  Co.  v. 

i  Burdsal  v.  Davies,  58  Mo.  138.  Bertig,  81  App.  393. 

^McMartin  v.  Adams,  16  Mo.  268.  6  Meyer  v.  Fette,  31  Mo.  423;  Fay  v. 

3  Sanders  v.  Anderson,  21  Mo.  402.  Richmond,  18  App.  355. 

4  See  v.  Cox,  1 6  Mo.  166.  7  Mechanics'  Bank  v.  Donnell,  35  Mo. 
» Spears  v.  Bond,  79  Mo.  467.    See  373. 

also  Burdsal  v.  Davies,  58  Mo.  138.     In        8  First  Nat  Bank  v.  Landis,  34  App. 
actions  to  recover  a  debt  there  must    433.    See  §  343,  ante. 
always  be  an  allegation  that  the  debt 


L98  THE  PETITION.  [§§  350-353. 

any  other  or  his  order,  or  to  bearer,  any  sum  of  money  or  prop- 
erty, shall  import  a  consideration  and  be  due  and  payable  as 
specified  in  the  instrument.1  Whether  the  note  is  negotiable  or 
non-negotiable,  it  is  not  necessary  that  the  petition  should  set 
out  the  consideration,  but  if  it  is  set  out  it  must  appear  to  be  a 
good  consideration.2  Nor  is  it  necessary  to  allege  or  prove  a 
consideration  for  an  indorsement.3 

§  350.  Bills  and  notes  —  Stating  the  date. —  The  date  of  the 
note  must  be  truly  stated;  and  if  it  bears  no  date  it  may  be 
alleged  to  have  been  made  on  any  day ;  but  in  the  latter  case 
the  words  "bearing  date"  or  "dated"  must  be  omitted.4  If  an 
administrator  brings  an  action  on  a  note  given  to  his  intestate, 
which  bears  date  subsequent  to  the  granting  of  letters  of  ad- 
ministration, it  is  not  necessary  to  aver  that  the  note  was  incor- 
rectly dated.5 

§  351.  Action  on  lost  note. —  Where  the  action  is  to  recover 
on  a  negotiable  instrument  which  is  alleged  to  have  been  lost, 
the  petition  need  not  contain  an  averment  that  plaintiff  has  ex- 
ecuted a  bond  of  indemnity  as  required  by  section  745,6  although 
such  bond  must  be  given  before  judgment  can  be  rendered  in 
plaintiff's  favor;  but  this  maybe  done  after  the  pleadings  are 
filed  and  the  issues  joined,  and  therefore  its  mention  in  the  peti- 
tion is  uncalled  for.7 

§  352.  On  note  to  partnership. —  Where  the  note  is  made  pay- 
able to  a  firm,  it  is  not  necessary  to  allege  in  the  petition  that 
the  note  was  executed  to  the  payees  by  their  firm  name.8 

§  353.  Action  against  indorser. — Where  it  is  sought  to  hold 
the  indorser  on  a  negotiable  promissory  note,  the  petition  must 
state  the  facts  from  which  it  will  appear  to  the  court  that  the 
note  is  in  fact  a  negotiable  one.  It  is  not  sufficient  to  aver  that 
the  note  is  negotiable.9  And  a  mere  allegation  that  the  note  was 
executed  for  a  valuable  consideration  is  not  sufficient  to  indicate 
whether  it  is  negotiable  or  non-negotiable,  since  notes  of  both 
classes  are  generally  given  for  a  valuable  consideration.  The 
petition  must  in  terms  aver  that  the  note  was  expressed  to  be  for 

1  Rev.  Stat.  1899,  sec.  894.  5  Hamilton  v.  Stewart,  5  Mo.  266. 

2  Glasscock  v.  Glasscock,  66  Ma  627 ;        6  Rev.  Stat.  1899. 

Taylor  v.  Newman,  77  Mo.  257.  7  Eans  v.  Exchange  Bank,  79  Mo.  182. 

3  Rubelman   v.   McNiohol,   13  App.    See  also  §  338,  ante. 

584     That  the  petition   must  show  8  Lee  v.  Hunt,  6  Mo.  163.     Consult 

that  the  note  was  expressed  to  be  for  also  §  249,  ante. 

value  received,  see  §  353,  post.  9Towr,send  v.  Heer  Dry  Goods  Co., 

*  Grant  v.  Winn,  7  Mo.  188.  85  Mo.  503. 


§§  354,  355.]  FOREGOING    RULES    APPLIED.  199 

value  received.1  But  if  the  recital  is  accompanied  by  a  copy  of 
the  note,  which  is  set  out  in  kcec  verba  in  the  petition,  and  such 
copy  contains  the  words  "  value  received,"  the  petition  is  good.2 
"Where  the  action  is  brought  by  an  indorsee,  the  petition  must 
show  his  title  or  ownership,  and  an  omission  to  do  so  is  fatal, 
even  on  motion  in  arrest  or  on  appeal.3  But  it  is  not  necessary 
that  he  should  aver  that  he  is  a  holder  for  value.4  An  allega- 
tion that,  before  maturity,  the  note  was  indorsed  and  transferred 
to  plaintiff  for  a  valuable  consideration,  and  that  he  was  the 
holder  and  owner  at  maturity,  is  a  sufficient  allegation  of  title 
in  plaintiff.5  An  allegation  that  the  payee  of  the  note  indorsed 
it  to  the  plaintiff  by  writing  his  name  on  the  back  of  it  is  a 
sufficient  averment  of  ownership.6  It  is  not  necessary  to  set  out 
all  the  successive  indorsements.7  But  if  there  is  an  attempt  to  set 
them  out,  they  must  be  so  alleged  as  to  show  a  title  in  plaintiff.8 

§  354.  Where  the  action  is  against  the  maker  and  one  or  more 
of  the  indorsers,  it  is  sufficient  to  aver  the  execution  of  the  note 
and  the  non-payment  of  it  by  the  defendants.  The  fact  that  the 
action  is  against  several  parties  who  are  severally  liable  does 
not  change  the  character  of  the  pleading  as  against  each,  nor 
make  it  necessary  to  aver  more,  to  make  each  of  the  defendants 
liable,  than  would  have  been  required  if  each  had  been  sued  sep- 
arately.9 

§355.  Alleging  acceptance. —  In  an  action  by  the  indorsee 
against  an  indorser  of  a  bill  of  exchange,  a  petition  which  alleges 
that  the  bill  was  presented  to  the  drawee  for  acceptance,  "  and 
was  by  him  then  and  there  declined  and  refused  acceptance,  and 
not  accepted,"  contains  a  sufficient  averment  of  a  demand  of  ac- 
ceptance.10 Where  a  bill  of  exchange  was  payable  on  demand, 
and  the  petition  alleged  a  conditional  acceptance,  the  effect  of 
which  was  to  postpone  payment,  but  failed  to  allege  that  the 
drawer  had  timely  notice  of  the  nature  of  the  acceptance,  and 
had  consented  to  it,  or  that  the  drawee  had  not  kept  the  terras 
of  his  acceptance,  and  also  failed  to  contain  averments  showing 

1  Hart  v.  Harrison  Wire  Co.,  91  Mo.  6  Rubelman  v.  McNichol,  13  App. 
414.                       '  584 

2  Jacobs    v.   Gibson,   77    App.    244;  7  Kinealy  v.  Burd,  9  App.  359. 
Harkness  v.  Jones,  71  App.  289.  8  Dyer  v.  Krayer,  37  Mo.  603. 

3  Donovan  v.  Thompson  Pottery  Co.,  9  Page  v.  Snow,  18  Mo.  126.  For  a 
9  App.  595.  case  where  one  writing  his  name  on 

4  Clark  v.  Schneider,  17  Mo.  295;  the  back  is  sued  as  maker,  see  §348, 
Rubelman  v.  McNichol,  13  App.  584.  ante. 

5  Hawes  v.  Mulholland,  78  App.  493.  J°  First  Nat.  Bank  v.  Hatch,  78  Mo.  13. 


200  THE. PETITION.  [§§  356-359. 

that,  as  between  the  drawer  and  the  drawee,  the  former  had  no 
right  to  draw  the  bill,  such  petition  is  bad  for  want  of  some  one 
of  these  averments.1 

§  :>5G.  Demand  and  notice. —  In  an  action  against  the  maker 
and  indorsers  of  a  note,  an  allegation  that  on  the  day  it  became 
due  it  was  duly  presented  to  the  maker,  and  that  payment  was 
refused,  is  a  sufficient  averment  of  a  demand  and  refusal.2  And 
the  statement  of  a  demand  is  sufficient  without  the  accompany- 
in  f  statement  that  presentment  was  made.3  If  the  action  is  on 
a  note  payable  at  a  particular  place,  the  petition  is  fatally  de- 
fective if  it  fails  to  aver  presentment  at  that  place,  a  demand  of 
payment  there,  and  notice  of  non-payment  to  the  indorser.4 

§  357.  An  allegation  that  the  indorser  had  notice  of  demand 
and  protest  is  sufficient  to  let  in  proof  of  due  notice  of  demand 
and  refusal.5  Any  facts  which  dispense  with  the  necessity  of  mak- 
ing a  demand  and  of  giving  notice  must  be  specifically  set  out.6  An 
averment  that  at  defendant's  instance  and  request  the  note  was 
not  protested,  he  waiving  protest,  is  not  a  sufficient  averment  of  a 
demand,  or  of  facts  which  will  excuse  or  be  equivalent  to  a  de- 
mand.7 Where  the  indorser  has  guaranteed  payment  at  matu- 
rity and  waived  notice  of  protest  and  demand,  the  petition  is 
sufficient  if  such  indorsement  is  fully  set  out,  without  alleging 
that  a  demand  was  made  and  that  notice  was  given,  since  the 
words  of  waiver  are  broad  enough  to  include  all  the  steps  legally 
necessary  to  fix  the  liability  of  the  indorser.8 

§  358.  A  draft  issued  by  one  bank  upon  another  is  equivalent 
to  a  bill  of  exchange,  and  the  same  rules  prevail  as  to  present- 
ment and  notice.  Therefore,  where  the  holder  of  such  a  draft 
sues  the  bank  issuing  it,  the  petition  must  contain  an  allegation 
that  the  draft  had  been  presented  to  the  bank  on  which  it  was 
drawn  and  payment  refused.9 

§  359.  Action  on  assigned  note.— Where  the  action  is  against 
an  assignor  of  a  non-negotiable  note,  the  petition  must  aver  the 
existence  of  such  facts  as  will,  under  the  statute,  render  the  as- 
signor liable.10     Thus  it  must  show  that  the  holder  has  used  due 

O 

i  Taylor  v.  Newman,  77  Mo.  257.  6  Pier  v.  Heinrichoffen,  52  Mo.  333. 

^Ewing  v.   Pulitzer,  12  App.   578;        7  Jaccard  v.  Anderson,  32  Mo.  188. 
Rude  v.  Harvey,  83  Mo.  188.  8  Hammett  v.  Trueworthy,  51  App. 

'  Mercantile  Bank  v.  McCarthy,  7  281.     But  see  ante,  §  145  et  seq. 
App.  318.  9  Myers    v.   Commercial    Bank,    72 

*  Faulkner  v.  Faulkner,  73  Mo.  327.  App.  4 

s  Mechanics'  Savings  Institution  v.       10  Weimer  v.  Shelton,  7  Mo.  266. 
Finn,  1  App.  36. 


§§  360-362.]  FOREGOING   RULES    APPLIED.  201 

diligence  in  the  employment  of  proper  means  to  collect  the  note 
from  the  maker,  since  the  question  of  diligence  is  the  one  of  law 
to  be  determined  by  the  court;1  or  it  must  aver  existence  of 
some  fact  which,  under  the  statute,  renders  the  assignor  liable.2 

§  360.  Action  on  bond. —  A  petition  is  good  which  sets  out  the 
bond,  omitting  only  the  signature  and  seal.3  Thus,  a  petition 
which  stated  that  defendants,  by  their  certain  writing  obliga- 
tory, sealed  with  their  seals,  became  bound  unto  A  in  the  sum 
of dollars,  for  the  just  payment  of  which  they  bound  them- 
selves, sufficiently  avers  the  execution  of  the  bond  by  defendants.4 
The  condition  of  the  bond  must  be  set  forth,  if  not  in  hcee  verba, 
at  least  in  substance.5  The  breaches  of  the  bond  must  of  course 
be  assigned  in  clear  and  concise  language.6  Where  the  condition 
of  a  bond  was  that  the  obligor  should  use  his  endeavors  to  sell 
certain  lands  before  a  certain  day,  and  the  petition  alleged  that 
plaintiff  did  not  know  and  could  not  say  whether  defendant  did 
use  his  endeavors,  but  that  the  obligor  did  not  sell  the  property 
within  the  time  specified,  the  breach  was  not  sufficiently  as- 
signed; there  should  have  been  an  averment  that  the  obligor  did 
not  use  his  endeavors.7  The  several  breaches  of  the  bond  do  not 
constitute  different  causes  of  action.8  Even  though  the  plaintiff 
sets  out  the  breaches  in  the  form  of  several  counts,  the  petition 
nevertheless  states  but  a  single  cause  of  action  on  the  bond.9 

§  361.  The  averment  in  a  petition  was  as  follows:  "Whereby 
defendants  became  liable  to  pay  plaintiff  to  the  use  of  said  re- 
lator the  sum  of  $2,000;  wherefore  plaintiff  prays  judgment 
against  defendants  in  the  sum  of  $2,000,  the  penalty  of  said  bond, 
and  that  execution  issue  against  defendants  for  the  sum  of  $177." 10 
This  was  held  to  be  a  sufficient  averment  of  the  penalty  of  the 
bond.11 

§  362.  Bonds  other  than  for  the  payment  of  money. —  In  an 
action  on  a  bond  for  the  breach  of  any  condition  other  than  the 

1  Collins  v.  Warburton,  3  Mo.  202.  7  Schuyler  v.  Chittenden,  47  Mo.  65. 

2  Weimer  v.  Shelton,  7  Mo.  200.  8  state  to  use  v.  Davis,  35  Mo.  406; 
3Busche  v.  McElroy,  12  App.  567.  State  to  use  v.  Bonner,  5  App.  13; 
4  State  ex  rel.  v.  Rush,  77  Mo.  586.  State  to  use  v.  Webster,  53  Mo.  135. 

s  Payne  v.  Snell,  4  Mo.  238;  State  ex  9  Hickory  County  v.  Fugate,  143  Mo. 

reL  v.  Pace,  34  App.  458.  71. 

6  State  to  use  v.  Thomas,  17  Mo.  503;  w  See  Rev.  Stat.  1899,  sec.  471. 

Schuyler  v.  Chittenden,  47  Mo.  65;  n  State  ex  reL  v.  Johnson,  78  App. 

State  to  use  v.  Bartlett,  68  Mo.  581;  569. 
State  ex  rel.  v.  Pace,  34  App.  458. 


202  THE  PETITION.  [§§363-365. 

payment  of  mono}7",  or  for  a  penal  sum  for  the  non-performance 
of  any  covenant  or  written  agreement,  the  petition  must  set  out 
the  specific  breaches  for  which  the  action  is  brought.1  A  bond 
given  under  sections  4343, 4344,2  giving  to  mortgagees  a  year  after 
the  sale  for  redemption,  and  which  is  conditioned  to  be  void  upon 
payment  of  the  interest  to  accrue  on  the  secured  debt,  is  a  bond  for 
the  payment  of  money,  and  is  excepted  by  section  468 x  from  the 
rule  of  pleading  relative  to  the  assignment  of  specific  breaches.3 

§  363.  Bond  executed  in  assumed  name. —  If  one  had  exe- 
cuted a  bond  in  an  assumed  name,  he  could  not  under  the  com- 
mon law  have  sued  by  his  true  name,  though  the  declaration 
contained  an  averment  that  he  made  the  bond  in  an  assumed 
name;  but  the  rule  is  otherwise  under  the  Code.4 

§  384.  Action  on  attachment  bond. —  In  an  action  on  an  at- 
tachment bond  it  is  not  necessary  to  aver  that  there  was  an  affi- 
davit for  the  attachment  made  and  filed,  if  the  petition  contains 
an  averment  that  a  plea  in  abatement  was  filed  in  such  attach- 
ment suit,  and  that  upon  the  issues  tendered  by  it  a  trial  and 
judgment  were  had.5  The  truth  or  falsity  of  the  attachment 
affidavit  cannot,  however,  be  tried  in  an  action  on  the  attach- 
ment bond,  and  an  averment  in  the  petition  that  certain  state- 
ments in  the  attachment  affidavit  were  false  should  be  stricken 
out.6  The  breach  assigned  in  an  action  on  an  attachment  bond 
was  that  the  plea  in  abatement  was  found  against  the  attaching 
creditor;  and  it  was  then  alleged  that  plaintiff  was  compelled 
to  and  did  lay  out  and  expend  large  sums  of  money,  and  was  put 
to  great  expense  and  trouble  in  and  about  defendant's  said  ac- 
tion, to  wit,  $500.  It  was  held  that  these  allegations  would 
authorize  the  introduction  of  evidence  as  to  special  damages,  such 
as  lawyer's  fees,  hotel  bills,  etc.7 

§  335.  Actions  against  carriers. —  It  is  not  necessary  to  state 
what  the  carrier's  duty  is;  it  is  sufficient  to  set  forth  that  defend- 

1  Rev.  Stat.  1899,  sec.  468.  5  State  ex  rel.  v.  Pace,  34  App.  458. 

2  Rev.  Stat.  1899.  6  Bennett  v.  Southern  Bank,  61  App. 
8  .Mutual  Benefit  Ins.  Co.  v.  Brown,    297. 

80  App.  459.     In  Bank  of  Hale  v.  Pen-  7  Kelly  v.  Beauchamp,  59  Mo.  178; 

nington,  62  App.  585,  the  action  was  and  a  decision  of  the  court  of  appeals 

on  a  bond  for  the  redemption  of  cer-  is  to  a  like  effect.    State  to  use  v.  Mc- 

tain  land,  which  bond  was  given  pur-  Hale,  16  App.  478. 

suant  to  a  decree  in  equity,  and  the  I  have  put  actions  on  official  bonds 

petition  set  out  in  full  is  approved  by  in  §§  441-444,  post;  actions  on  public 

the  court.  securities  in  §  451,  post. 
4  Sanders  v.  Anderson,  21  Mo.  402. 


§§  366,  367.]  FOREGOING   RULES    APPLIED.  203 

ant  is  a  common  carrier,  the  delivery  of  the  goods  to  it  and  their 
loss  through  negligence.  If  the  carrier  has  a  special  contract 
he  must  set  it  up.1  A  petition  which  charges  in  substance  that 
defendant  did  not  exercise  due  and  proper  care  in  the  carriage 
of  plaintiff's  hogs,  but  that  on  the  contrary  its  officers,  servants 
and  agents  carelessly,  improperly  and  negligently  managed  and 
conducted  defendant's  steamboat,  by  reason  of  which  careless- 
ness, negligence  and  improper  conduct  said  hogs  were  destroyed 
by  fire,  and  wholly  lost  to  plaintiff,  is  sufficient.2  If  the  action 
against  the  carrier  is  ex  contractu,  and  there  is  a  special  contract 
by  which  the  common-law  liability  is  restricted,  such  special 
contract  must  be  set  out  in  the  petition ;  but  if  the  action  is  in 
tort  for  the  breach  of  the  duty  imposed  by  law,  it  is  unnecessary 
to  notice  the  special  contract,  even  though  it  is  under  seal.3  But 
in  the  latter  case  the  defendant  may  set  up  the  special  contract 
and  found  a  defense  upon  it.4  It  is  not  necessary  to  aver  a  con- 
sideration for  the  contract.5 

§  366.  Same  — Averment  that  defendant  is  a  common  car- 
rier.—  It  is  not  necessary  that  the  petition  should  expressly  state 
that  defendant  is  a  common  carrier  for  hire.  It  is  sufficient  if 
it  clearly  appears  from  all  the  allegations  of  the  petition  taken 
together  that  defendant  was  a  common  carrier,  or  that  the  con- 
tract of  affreightment  was  entered  into  with  defendant  in  that 
capacity.6  Thus  the  allegation  of  a  contract  to  carry,  coupled 
with  an  averment  that  defendant  is  a  railroad  corporation,  is 
sufficient  to  fix  the  liability  of  defendant  as  a  common  carrier.7 

§367.  Same  — Alleging  negligence. —  In  an  action  based 
upon  the  common-law  liability  of  a  carrier  for  failing  to  carry 
an  animal  safely,  the  petition  need  only  allege  general  negli- 
gence; but  if  plaintiff  specifies  the  acts  of  negligence,  he  will  be 
confined  in  his  proof  to  those  acts.8  Where  the  cause  of  action 
is  based  upon  negligence  on  the  part  of  the  agents  of  defendant 
in  increasing  the  speed  of  a  moving  car  while  a  passenger  was 

i  Clark  v.  St.  Louis,  K  C.  &  N.  R,  Co.,  65  Mo.  629;  Goodman  v.  Missouri, 

Co.,  64  Mo.  440;  McFadden  v.  Missouri  K.  &  T.  R.  Co.,  71  Mo.  460. 

Pac.  R,  Co.,  92  Mo.  343.  ■'  Davis  v.  Jacksonville  Southeastern 

2  Carlisle  v.  Keokuk  Northern  Line  Line,  126  Mo.  69. 

Packet  Co.,  82  Mo.  40.  H  Smithers  v.  Steamboat  War  Eagle, 

3  Clark  v.  St.  Louis,  K  C.  &  N.  R.     29  Mo.  312. 

Co.,  64  Mo.  440;  Garrison  v.  Baggage  ^Rain  v-  Kansas  City,  St.  J.  &  C.  B. 
Trans.  Co.,  94  Mo.  130.  R,  Co.,  29  App.  53. 

4  Oxley  v.  St.  Louis,  K  C.  &  N.  R,        8  Lachner  v.  Adams  Express  Co.,  72 

App.  13. 


304  THE  PETITION.  [§§  368,  300. 

in  the  act  of  Btepping  aboard,  it  is  essential  that  the  petition 
should  allege  the  knowledge  of  defendant's  agents,  or  the  oppor- 
tunity by  ordinary  care  of  knowing,  that  plaintiff  was  in  the  act 
of  boarding  the  car.1 

§  ;J0S.  Same  —  Action  by  passenger. —  Where  an  action  is 
lit  by  a  passenger,  it  is  proper  to  set  out  in  the  petition  the 
contract  with  the  defendant's  agent.in  the  purchase  of  the  ticket, 
such  fact  being  declared  on  as  a  matter  of  inducement  and  as  the 
foundation  of  plaintiff's  asserted  right  to  be  on  the  defendant's 
train,  from  which,  as  a  matter  of  law,  springs  the  obligation  of 
the  defendant  carrier,  these  allegations  being  followed  with  aver- 
ments of  a  breach  of  the  contract  by  defendant's  failure  to  per- 
form its  duty  in  this  respect.2  If,  however,  the  injury  occurred 
while  plaintiff  was  a  passenger  on  a  freight  train,  it  is  not  neces- 
sary that  the  petition  should  set  out  the  rules  of  the  company 
relating  to  riding  upon  freight  trains,  and  allege  a  compliance 
with  such  rules  on  his  part;  if  there  was  a  known  violation  by 
the  plaintiff  of  the  company's  rules,  this  is  matter  of  defense, 
which  must  be  set  up  by  the  defendant.3  A  petition  which  states 
that  plaintiff,  while  a  passenger  on  a  moving  train,  was  directed 
by  the  conductor,  or  some  other  employee  of  defendant,  to  jump 
off  on  reaching  his  stopping  place,  and  by  reason  of  obeying  such. 
direction  plaintiff  was  injured,  is  not  fatally  defective  because  it 
does  not  state  that  the  "  other  employee  "  was  authorized  by  de- 
fendant to  give  such  directions  to  passengers.4  Where  the  action 
was  based  upon  the  wrongful  ejection  of  plaintiff  from  the  train 
at  a  station  other  than  the  one  to  which  plaintiff  had  purchased 
a  ticket,  and  the  petition  shows  that  the  train  did  not  stop  at  that 
station,  the  petition  is  defective  if  it  fails  to  allege  that  under  the 
rules  of  the  companj'-  the  train  on  which  plaintiff  took  passage 
was  required  to  stop  at  such  station.5 

§  309.  Action  on  contract. —  A  petition  to  recover  for  a  breach 
of  contract  should  set  out  the  contract,  either  in  full  or  in  sub- 
stance, and  then  assign  the  breaches.6  But  it  is  only  necessary 
to  set  out  so  much  of  the  contract  as  relates  to  the  point  of 

1  "Worth ington  v.  Lindell  R  Co.,  72  the   earlier  decision  of  the  court  of 

Appi  162.  appeals  in  the  same  case.     22  App.  60. 

-'  McGinnis  v.  Mo.  Pac.  R.  Co.,  21  <  Wilburn  v.  St.  Louis,  L  M.  &  S.  R. 

App.  Co..  36  App.  203. 

'Whitehead  v.  St  Louis,  I.  M.  &  S.  5 Turner  v.  McCook,  77  App.   196. 

R.  Co.,  9CI  Mo.  263.    This  decision  of  the  See  also  §  367,  ante. 

supreme  court  necessarily  overrules  6  Langford  v.  Sanger,  40  Mo.  160. 


§§  370-373.]  FOREGOING   EULES    APPLIED.  205 

which  complaint  is  made.1  Tet  the  omission  of  any  part  of  the 
contract  which  materially  qualifies  and  alters  the  legal  nature 
of  the  promise  which  is  alleged  to  have  been  broken  will  be 
fatal.1  A  mere  incident  to  the  undertaking  need  not  be  stated.2 
The  petition  must  state  with  whom  the  defendant  agreed  and 
to  whom  he  became  responsible; 3  and  it  must  allege  and  prove 
a  substantial  compliance  on  plaintiff's  part  with  the  contract.4 
"Where  the  action  is  against  two  persons  the  petition  need  not 
state  that  the  liability  was  jointly  incurred  by  them.5 

§  370.  Where  a  contract  is  referred  to  in  the  petition  only  as 
matter  of  inducement,  as,  for  example,  to  explain  the  nature  of  a 
slanderous  charge  made  by  defendant  against  plaintiff,  it  need 
not  be  set  out  with  any  great  particularity.6  But  if  the  petition 
states  a  contract  by  way  of  inducement,  and  then  declares  upon 
a  subsequent  agreement  based  upon  a  condition  which  it  does 
not  allege  has  been  performed,  it  states  no  cause  of  action.7 

§  371.  If  the  contract  relied  on  by  plaintiff  is  express,  it  must 
be  so  pleaded,  and  the  terms  of  the  contract  must  be  substan- 
tially set  out.  But  if  the  contract  is  implied,  the  facts  out  of 
which  it  is  claimed  to  arise  should  be  pleaded,  and  it  is  then 
proper  that  the  plaintiff,  after  stating  the  facts,  should  draw  the 
conclusion  that  the  contract  was  implied  from  them.8 

§  372.  Where  the  contract  is  one  concerning  land,  the  petition 
is  not  defective  because  it  does  not  state  that  such  contract  is  in 
writing;  if  defendant  relies  upon  the  statute  of  frauds  he  must 
plead  it.9  And  in  such  case,  where  the  petition  does  not  dis- 
close whether  the  contract  is  in  writing  or  parol,  it  will  be  pre- 
sumed that  the  contract  alleged  is  in  writing,10  and  that  the  con- 
tract is  a  valid  one.11 

§  373.  Contracts  —  Stating  the  consideration. —  The  general 
rule  is  that  in  actions  on  simple  contracts  the  consideration  should 
be  expressly  and  formally  pleaded;  but  the  rule  does  not  include 
contracts  under  seal  and  negotiable  instruments,  for  they  im- 
port a  consideration.12     Nor  does  the  rule  include  instruments  in 

i  Moore  v.  Mountcastle,  72  Mo.  605.  ^Gist  v.  Eubank,  29  Mo.  248. 

2  Owens  v.  Geiger,  2  Mo.  39.  10  Sharkey  v.  McDermott,  91  Mo.  467. 

3 Tate   v.  Barcroft,  1  Mo.  163;  La-  "Van  Idour  v.  Nelson,  60  App.  523. 

berge    v.    McCausland,    3    Mo.    585;  I2  Montgomery  County  v.  Auchley, 

Keatly  v.  McLaugherty,  4  Mo.  221.  92  Mo.   120.     It  is  doubtful  whether 

4  Fairbanks  v.  De  Lissa,  36  App.  711.  the  above  exception  as  to  sealed  in- 

5  Fellows  v.  Jernigan,  68  Mo.  434.  struments  would  now  apply  in  view 

6  Clements  v.   Maloney,  55  Mo.  352.  of  the  terms  of  section  983  (Rev.  Stat. 

7  Brecheisen  v.  Coffey,  15  App.  80.  1899),  abolishing  private  seals. 

8  Wetmore  v.  Crouch,  150  Mo.  671. 


206  the  petition.  [§§  374,  375. 

writing  which  are  declared  by  section  894  Ho  import  a  considera- 
tion :  '  as  a  bill  of  exchange  or  promissory  note.3  If  the  instru- 
ment sued  on  imports  a  consideration,  and  defendant  relies  on  a 
want  of  consideration,  he  must  plead  it.4  While  it  is  true  that 
in  an  action  based  upon  a  written  promise  to  pay  money  it  is 
not  necessary  that  the  petition  should  state  a  consideration,  yet 
if  it  does  state  one  it  must  be  a  good  one,  or  the  petition  will  be 
demurrable.5  In  an  action  against  a  common  carrier  upon  a  con- 
tract for  the  carriage  of  goods,  it  is  not  necessary  to  allege  a 
consideration.6 

§  :]<4.  Where  the  contract  has  been  modified. —  If  the  terms 
of  the  contract  have  been  changed  or  modified  by  a  subsequent 
agreement,  plaintiff  must  declare  on  the  agreement  as  modified, 
and  the  change  in  the  contract  must  be  clearly  set  forth.7  If  the 
contract  was  in  writing,  but  the  modification  by  parol,  plaintiff 
should  declare  on  it  by  first  setting  out  the  agreement  and  then 
the  modification,  since  each  is  a  substantive  fact.8  Where  the 
contract  was  for  the  payment  of  a  debt,  and  there  has  been  a 
subsequent  agreement  which  merely  amounts  to  an  extension  of 
time  for  such  payment,  it  need  not  be  alleged  in  the  petition.9 

§  375.  Contracts  —  Quantum  meruit. —  Where  the  plaintiff 
has  been  prevented  by  the  other  party  from  completing  his  work, 
and,  waiving  the  damages  for  breach  of  the  contract,  sues  to  re- 
cover on  quantum  meruit,  it  is  no  objection  to  the  petition  that  it 
sets  out  the  contract  and  avers  a  compliance  by  plaintiff  with  its 
terms,  and  the  termination  of  the  contract  by  defendant,  pro- 
vided the  petition  shows  that  plaintiff  elected  to  treat  the  con- 
tract as  canceled,  and  is  seeking  to  recover  only  the  value  of  the 
services  rendered.10 

1  Rev.  Stat.  1899.  6  Davis  v.  Jacksonville  Southeastern 

- 1  laples  v.   Branham,  20  Mo.   244;  Line,  126  Mo.  69. 

Montgomery  County  v.   Auchley,  92  7 Henning  v.  United  States  Ins.  Co., 

!  26.  47  Mo.  425;  Lanitz  v.  King,  93  Mo.  513. 

-Taylor    v.   Newman,   77  Mo.   257;  8 Harrison  v.  Kansas  City,  C.  &  S.  R. 

Eubelman  v.  McNichol,  13  App.  584  Co.,  50  App.  332;  Halpin  Mfg.  Co.  v. 

4  Montgomery  County  v.  Auchley,  School  District,  54  App.  371  (in  which 
92  Mo.  120.  This  case  further  holds  case  the  prior  cases  are  reviewed  and 
that  the  statute  also  applies  to  a  large  distinguished);  Evers  v.  Shumaker,  57 

of  contracts  in  writing  which  App.  454. 

do  not  come  under  the  designation  of  9Maack  v.  Schneider,  51  App.  92. 

negotiable  or  non-negotiable  notes  or  10Ehrlich  v.  iEtna  Life  Ins.  Co.,  88 

bills.  Mo.  249. 

5  Glasscock  v.  Glasscock,  66  Mo.  627. 


§§  376,  377.]  FOREGOING   KULES    APPLIED.  207 

§  376.  Contracts  —  Illustrations. —  Where  the  cause  of  ac- 
tion is  based  upon  an  agreement  by  defendant  to  pay  out  of  the 
proceeds  of  the  sale  of  certain  property  a  debt  which  plaintiff 
owes  a  third  party,  plaintiff  must,  in  his  petition,  allege  that  there 
has  been  a  sale  of  the  property  or  a  conversion  of  it  by  defend- 
ant, since  defendant's  contract,  not  being  to  pay  generally,  but 
to  pay  out  of  the  special  fund,  it  is  to  this  fund  only  that  the 
plaintiff  can  look  for  payment.1  In  an  action  to  recover  dam- 
ages for  breach  of  a  contract  for  the  sale  of  real  estate,  the  peti- 
tion must  allege  a  tender  of  a  deed  or  some  excuse  for  not  doing 
so.2  But  where  the  contract  was  to  exchange  land,  in  suing  for 
a  breach  plaintiff  need  not  aver  the  tender  of  a  deed  on  his  part, 
if  defendant,  by  conveying  his  land  to  a  third  party,  has  put  it 
out  of  his  power  to  perform  his  part  of  the  contract.3  Where 
one  covenants  to  convey  land  upon  the  performance  of  a  par- 
ticular act,  such  as  the  payment  of  money,  it  is  not  necessary,  in 
an  action  to  recover  damages  for  breach  of  such  agreement,  to 
allege  a  demand  for  a  deed.4  But  if  the  contract  were  made 
with  one  who  is  deceased,  it  must  be  alleged  that  a  demand  was 
made  for  a  deed  by  the  party  entitled  to  the  deed,  whether  heir 
or  devisee.5 

§  377.  In  actions  for  conversion. — The  old  technical  rules  of 
pleading  have  no  application  to  an  action  under  the  Code  to  re- 
cover for  a  conversion.6  If  the  cause  of  action  is  a  conversion 
of  plaintiff's  property  to  defendant's  use,  that  fact  should  be  di- 
rectly alleged;  it  is  not  sufficient  to  state  facts  which  constitute 
evidence  of  the  conversion.7  But  it  seems  it  is  sufficient  to  allege 
facts  from  which  a  conversion  may  be  inferred.8  The  petition 
is  good  if  it  alleges  a  wrongful  or  tortious  taking  of  plaintiff's 
property.9  Yet,  while  the  use  of  the  formal  and  technical  aver- 
ments, which  were  necessary  at  common  law  to  the  statement  of 
a  cause  of  action  in  trover,  have  been  dispensed  with  by  our 
code,  all  the  allegations  which  were  material  under  the  com- 
mon law  are  still  necessary  under  the  Code.     In  a  common-law 

1  New  York  Store  Mer.  Co.  v.  Chap-        6  Knipper  v.   Blumenthal,   107  Mo. 
man,  78  App.  610.  665. 

2  Black  v.  Crowther,  74  App.  480.  7  Perry  v.  Musser,  68  Mo.  477. 

3  Way  v.  Miller,  80  App.  382.  8  Withers  v.  Lafayette  County  Bank, 
*  Pye  v.  Rutter,  7  Mo.  548.                      67  App.  115,  119. 

5La)xrge  v.  McCausland,  3  Mo.  585.        9  Norman  v.  Horn,  36  App.  419.    See 
The  rules  governing  actions  for  a    notes  1-3  on  next  page. 

breach  of  promise  of  marriage  will  be 

found  in  §  406,  post. 


208  THE  PETITION".  [§§  37S,  379. 

art  ion  of  trover  it  was  necessary  to  state  that  plaintiff  had  the 
possession,  or  the  right  to  possession,  of  the  property  sued  for 
•  at  the  time  of  the  conversion;  and  such  averment  is  equally 
n  scessary  under  the  Code.1  An  allegation  that  plaintiff  on  Au- 
;  •_■;..  i  '..  became  and  ever  since  has  been  and  now  is  the 
owner  of  the  property  in  controversy,  and  that  afterwards  said 
property  came  into  the  possession  of  the  defendant,  who  unlaw- 
fully converted  the  same  to  his  own  use  and  disposed  of  the 
same,  contains  no  averment  of  possession  or  to  the  right  of  pos- 

ision  in  plaintiff,  and  therefore  fails  to  state  a  cause  of  action.2 
In  an  action  for  cutting  down  trees  and  carrying  them  away,  if 
there  is  an  averment  that  the  land  on  which  the  trees  grew  be- 
longed to  plaintiff,  it  is  not  necessary  to  allege  that  the  trees 
were  plaintiff's  property.3  If  a  conversion  is  in  terms  alleged, 
it  is  not  necessary  to  allege  a  demand  and  refusal,  even  though 
defendant  may  have  lawfully  come  into  possession  of  the  con- 
verted property.4 

§  378.  In  an  action  for  improperly  canceling  stock  certificates, 
a  petition  alleging  that  the  certificates  were  fraudulently  and 
without  authority  canceled,  and  that  the  corporation  refused  to 
issue  others  in  lieu  of  them,  states  a  cause  of  action,  since  it  states 
facts  sufficient  to  constitute  a  conversion  of  the  stock,  or  at  least 
facts  from  which  a  conversion  may  be  inferred.5 

§  379.  Action  by  or  against  corporation. —  In  an  action  by 
a  corporation,  an  allegation  that  the  plaintiff  is  a  corporation 
duly  incorporated  under  and  by  virtue  of  a  certain  act  is  suffi- 
cient.6 In  suing  on  a  note,  executed  to  a  corporation  by  its  cor- 
porate name,  it  is  not  necessary  to  allege  that  plaintiff  is  a  corpo- 
ration.7 In  pleading  the  dissolution  of  a  corporation  it  is  necessary 

1  Citizens'  Bank  v.  Tiger  Tail  Mill  &  It  is  to  be  observed,  however,  that  the 
Land  Co.,  152  Mo.  145.  decisions  of  the  appellate  courts  were 

2  Ibid.  This  decision  of  the  supreme  in  each  case  in  support  of  the  verdict 
court  seemingly  destroys  the  authority  or  finding. 

nick  v.  Baker,  42  App.  439,  de-  3  Atlantic  &  Pacific  R.  Co.  v.  Free- 

cided  by  the  court  of  appeals,  wherein  man,  61   Mo.   80.     But  compare  the 

it  is  held  that  if  the  petition  alleges  later  decision  cited  in  note  1. 

that  defendant,  without  leave,  for-  4  Battel  v.  Crawford,  59  Mo.  215. 

cibly  and  wrongfully  drove  away  cer-  6Withers  v.  Lafayette  County  Bank, 

tain  cattle  belonging  to  plaintiff,  and  67  App.  115. 

had  not   returned   them,  it  is  suffi-  6  Chillicothe  Savings  Ass'n  v.  Rueg- 

cient,    the  allegation  "  belonging  to  ger,  60  Mo.  218. 

plaintiff"  being  an  allegation  of  title  Tanners'  &  Merchants'  Ins.  Co.  v. 

which  carries  with  it  the  possession.  Needles,  52  Mo.  17. 


§§  3S0-383.]  foregoing  rules  applied.  209 

only  to  allege  that  the  company  was  dissolved,  and  it  is  unnec- 
essary to  state  the  facts  upon  which  that  allegation  is  based * 
In  an  action  for  improperly  canceling  stock  certificates,  a  peti- 
tion alleging  that  the  certificates  were  fraudulently  and  without 
authority  canceled,  and  that  the  corporation  refused  to  issue  oth- 
ers in  lieu  thereof,  states  a  cause  of  action,  since  it  states  facts 
sufficient  to  constitute  a  conversion  of  the  stock,  or  at  least  facts 
from  which  a. conversion  may  be  inferred.2 

§380.  Action  for  breach  of  covenant, —  In  an  action  for 
breach  of  a  covenant  of  seizin,  the  breach  is  well  assigned  by 
negativing  the  words  of  the  covenant.3  If  the  averments  of  the 
petition,  either  in  their  express  intent  or  by  necessary  implica- 
tion, show  that  a  breach  has  been  committed,  it  is  sufficient.4 
But  the  petition  must  set  out  the  particular  incumbrances  relied 
on  as  constituting  the  breach.5  If  the  petition  sets  up  an  out- 
standing title  which  plaintiff  was  compelled  to  purchase,  it  need 
not  name  the  person  who  held  the  adverse  title.6 

§  381.  For  breach  of  warranty  in  sale. —  Where  an  action  is 
brought  upon  a  breach  of  warranty  of  soundness  in  the  sale  of  a 
horse,  a  general  allegation  that  the  horse  was  unsound,  without 
specification,  is  sufficient;  and  it  is  unnecessary  to  negative  the 
idea  that  the  defects  were  apparent.7  But  if  the  plaintiff  is  not 
content  with  the  general  allegation  that  the  horse  is  unsound, 
and  proceeds  to  state  the  cause  of  its  unsoundness  and  the  nature 
of  the  disease  with  which  it  is  afflicted,  he  must  prove  such  spe- 
cific allegation.8 

§  382.  Actions  under  the  damage  act. —  The  rules  governing 
petitions  brought  under  the  damage  act9  will  be  found  post,  in 
sections  421  et  seq. 

§  383.  In  suits  for  divorce. —  A  petition  for  a  divorce  must 
show  the  facts  which  under  the  statute  confer  jurisdiction  over 
the  cause.10    The  grounds  upon  which  the  divorce  is  claimed  must 

1  Perry  v.  Turner,  55  Mo.  418.  incorporation  of  a  municipality,  will 

2  Withers  v.  Lafayette  County  Bank,    be  found  post,  %%  417-420. 

67  App.  115.  3  Evans  v.  Fulton,  134  Mo.  653. 

A  decision  as  to  the  requisites  of  a  4  Stone  v.  Wendover,  2  App.  247. 

bill  in  equity,  filed  by  judgment  cred-  5  Shelton  v.  Pease,  10  Mo.  473. 

itors  against  the  shareholders  in  a  6  Hall  v.  Bray,  51  Mo.  288. 

corporation,  will  be  found  in  §  482,  7  Labeaumev.Poctlington,  21  Mo.  35. 

post.  8  Lindsay  v.  Davis,  30  Mo.  406. 

The  principles  applicable  to  peti-  9  Rev.  Stat.  1899,  sees.  2864-2866. 

tions  by  or  against  municipal  corpo-  10  Cheatham  v.  Cheatham,  10  Mo.  296. 
rations,  and  the  rules  for  pleading  the 
Mo.  Code  Pl.—  14 


210  T II K  PETITION.  [§§  3S4-386. 

be  specifically  alleged,  and  should  not  be  left  to  inference  or  pre- 
sumption. A  more  charge  of  abandonment  is  not  sufficient;  the 
words  of  the  statute  should  be  followed;1  and  the  petition  must 
allege  thai  the  absence  is  without  reasonable  cause  and  against 
the  will  of  the  petitioner.2  If  the  ground  upon  which  the  divorce 
is  claimed  is  indignities  offered,  it  is  not  sufficient  to  charge  this 
in  general  terms;  the  specific  acts  constituting  the  indignities 
must  be  set  forth.3  The  petition  must  also  allege  good  conduct 
on  the  part  of  the  complainant.4  Different  grounds  for  divorce 
may  be  joined  in  the  same  petition.1 

§  384.  Petition  for  admeasurement  of  dower. —  Section  2033 
gives  dower  to  the  widow  only  in  lands  of  which  her  husband 
was  during  the  marriage  seized  of  an  estate  of  inheritance.  There- 
fore a  petition  for  the  admeasurement  of  dower  must  allege  that 
the  husband  was  seized  of  an  estate  of  inheritance  during  the 
coverture,  otherwise  it  is  fatally  defective.5 

§  385.  Action  against  dram-shop  keeper, —  "Where  a  parent 
brings  an  action  against  the  keeper  of  a  dram-shop  for  selling 
intoxicating  liquor  to  his  minor  child  without  the  parent's  con- 
sent, it  is  not  necessary  that  the  petition  should  set  forth  the  kind 
of  liquor  which  was  sold.6 

§  386,  In  actions  of  ejectment. —  In  an  action  of  ejectment 
it  is  sufficient  for  plaintiff  to  aver  that  on  some  day,  to  be  speci- 
fied in  the  petition,  he  was  entitled  to  the  possession  of  the  prem- 
ises, describing  them,  and,  being  so  entitled  to  the  possession 
thereof,  that  defendant  afterward,  on  some  day  to  be  stated  in 
the  petition,  entered  into  such  premises  and  unlawfully  with- 
holds from  plaintiff  the  possession  of  them,  to  his  damage  in  such 
sum  as  he  may  claim.7  It  is  said  in  Alexander  v.  Campbell*  that 
this  section  does  not  require  that  the  petition  shall  state  the 
facts  specified,  but  it  says  it  shall  be  sufficient  if  it  does  so.  (p.  145.) 
The  only  substantive  facts  required  by  the  statute  to  be  alleged 
are  that  at  the  commencement  of  the  action  defendant  was  in 
possession  of  the  property  sought  to  be  recovered,  and  that  plaint- 
iff at  that  time  was  legally  entitled  to  its  possession.9  It  is  not 
sufficient  to  allege  that  plaintiff  is  legally  entitled  to  the  prem- 
ises; the  allegation  must  be  that  he  is  legally  entitled  to  the 

i  Stokes  v.  Stokes,  1  Mo.  320.  5  Garrison  v.  Young,  135  Mo.  203. 

2Freeland  v.  Freeland,  19  Mo.  354;  6 Edwards  v.  Brown,  67  Mo.  377. 

Hoffman  v.  Hoffman,  43  Mo.  547.  7  Rev.  Stat.  1899,  sec.  3058. 

3  Bowers  v.  Bowers,  19  Mo.  351.  8  74  Mo.  142. 

*  Yallaly  v.  Yallaly,  39  Mo.  490.  9  Alexander  v.  Campbell,  74  Mo.  142. 


§§  387-389.]  F0KEG0ING   RULES   APPLIED.  211 

possession  of  the  premises.1  An  allegation  of  seizin  in  the  an- 
cestor and  descent  to  the  heirs  is,  however,  a  sufficient  allegation 
of  title  and  right  to  possession.2  If  the  petition  fails  to  allege 
either  ouster  of  plaintiff  or  possession  by  defendant  it  is  defect- 
ive.3 But  it  would  seem  that,  unless  the  action  is  between  co- 
tenants,  it  is  not  necessary  for  plaintiff  to  allege  an  entry  or  an 
ouster  by  the  defendant.4  Where  defendants  in  ejectment  are 
husband  and  Wife,  and  the  action  is  to  recover  premises  which 
tenants  have  held  over  after  the  expiration  of  the  lease,  it  is  not 
necessary  that  the  petition  should  allege  that  the  holding  over 
was  the  separate  act  of  the  wife,  though  the  dispossession  com- 
plained of  was  in  fact  her  sole  act.5 

§  387.  Ejectment  —  Description. —  The  petition  must  contain 
such  a  description  of  the  premises  in  controversj-  as  to.  enable 
the  jury  to  identify  them  with  those  described  in  the  deeds  upon 
which  the  plaintiff  bases  his  claim.6  And  the  description  must 
be  such  that,  in  the  event  of  a  recovery  by  plaintiff,  the  officer 
charged  with  the  execution  of  the  writ  of  possession,  describing 
it  in  the  same  terms  as  those  contained  in  the  petition,  will  know 
from  the  writ  alone  of  what  land  it  is  his  duty  to  put  plaintiff 
in  possession.7  And  even  though  the  deed  under  which  the 
plaintiff  claims  title  is  defective  in  the  description,  the  petition 
must  yet  contain  an  adequate  description,  and  he  must,  upon  the 
trial,  supply  the  defect  by  parol  evidence.7  If  the  petition  fails 
to  correctly  describe  the  lands  sued  for,  there  can  be  no  valid 
judgment.8 

§  388.  Actions  against  judges  of  election. —  Where  one  brings 
an  action  against  judges  of  election  for  wrongfully  refusing  to 
receive  his  vote,  his  petition  must  contain  a  specific  statement  of 
all  the  facts  which  gave  him  the  right  to  vote.9 

§  380.  Proceeding  to  enforce  an  escheat. —  Where  a  proceed- 
ing is  instituted  by  the  state  to  recover  land  which  is  claimed  to 
have  escheated  to  the  state  by  reason  of  having  belonged  to  a 
deceased  alien,  the  petition  must  expressly  negative  the  existence 
of  those  facts  which  under  the  statute  entitled  an  alien  or  his 
heirs  to  hold  the  land.     Thus,  where  the  statute  provided  that 

1  Jamison  v.  Smith,  4  Mo.  202.  6  Newman   v.   Lawless,  6  Mo.  279; 

2  Tuppery  v.  Hertung,  46  Mo.  135.  Lemmon  v.  Hartsook,  80  Mo.  13. 

3  Tetherow  v.  Chambers,  74  Mo.  183.  7  Livingston   County  v.   Morris,  71 
*  Alexander  v.  Campbell,  74  Mo.  142.  Mo.  603. 

5  Van  Schrader  v.  Taylor,  7  App.  361.        8  Bricken  v.  Cross,  140  Mo.  166. 

9  Curry  v.  Cabliss,  37  Mo.  330. 


212  THE  PETITION.  [§§  390-392. 

an  alien  might  own  real  estato  if  he  had  at  the  time  of  receiving 
his  conveyance  declared  his  intention  to  become  a  citizen  of  the 
United  States,  the  petition  must  state  that  he  had  not  made  such 
declaration.  And  if  the  statute  provided  that  an  alien  might 
devise  the  land,  the  petition  must  aver  that  he  had  not  made 
such  devise.1 

§  390.  Action  on  a  guaranty. —  It  is  not  necessary  to  allege 
that  the  guaranty  is  in  writing.2  And  a  general  averment  of  a 
notice  of  acceptance  of  the  guaranty  by  the  plaintiff  is  sufficient.* 

§  391.  Action  between  husband  and  wife. —  A  married  woman 
brought  suit  against  her  husband  for  the  possession  of  her  lands. 
The  petition  stated  that  plaintiff  was  the  owner  of  the  real  estate 
in  question,  that  it  was  her  sole  and  separate  property,  that  her 
husband  struck  her  and  beat  her  with  his  fists,  and  was  guilty 
of  such  cruel  and  inhuman  treatment  as  to  endanger  her  life  and 
to  justify  her  living  separate  and  apart  from  him,  that  he  had 
exclusive  possession  of  the  lands,  and  prevented  her  from  enjoy- 
ing any  part  of  the  rents  and  profits  thereof.  Such  a  petition 
states  a  good  cause  of  action  under  the  statute,4  and  is  also  a 
good  bill  in  equity  independent  of  the  statute,  if  the  land  in 
question  constitutes  the  wife's  equitable  separate  estate.5 

§  392.  Actions  on  policies  of  insurance. —  If  in  an  action  on 
a  policy  of  insurance  the  petition  fails  to  allege,  either  directly 
or  inferentially,  the  amount  of  the  insurance,  or  that  plaintiff 
was  insured  in  any  specific  amount,  or  that  he  was  to  be  reim- 
bursed in  money  or  other  things,  it  is  fatally  defective.6  And  a 
petition  in  an  action  to  recover  for  the  loss  of  goods  under  a  pol- 
icy insuring  a  stock  of  goods  in  a  certain  store  must  contain  an 
averment  that  the  goods  were  at  the  time  of  the  loss  in  such 
store.7  So,  too,  the  petition  is  defective  if  it  fails  to  state  that 
the  insurance  was  for  a  definite  period,  and  that  at  the  date  of 
the  loss  such  period  had  not  expired.8  If  the  petition  fails  to 
allege  that  the  policy  was  due  and  payable  at  the  institution  of 

'  State  v.  Killian,  51  Mo.  80.  4Rev.  Stat  1899,  sea  4336. 

The  requisites  of  a  petition  in  an  6  Sackman  v.  Sackman,  143  Mo.  576. 

action  against  an  officer  for  failure  to  6  Wittkowsky  v.  American  Ins.  Co., 

apprise  a  debtor    of  his   exemption  79  App.  501. 

rights  will  be  found  post,  §  442.    For  7  Wright  v.  Bankers'  Ins.  Co.,  73  App. 

petition  by  a  real-estate  agent  to  re-  365. 

cover  commissions,  see  post,  §  449.  8  Shaver  v.  Mercantile  Ins.  Co.,  79 

-'  Miles  v.  Jones,  28  Mo.  87.  App.  420. 

3  Central  Savings  Bank  v.  Shine,  48 
Mo.  450. 


§§  393,  394.]  F0KEG0ING    EULES    APPLIED.  213 

the  suit,  and  contains  no  allegation  from  which  such  fact  may- 
be reasonably  inferred,  it  is  bad  even  after  verdict.1  A  mere  al- 
legation of  defendant's  indebtedness  to  plaintiff  is  insufficient.2 
An  allegation  that  defendant  insured  plaintiff  against  loss  or 
damage  by  fire  to  the  amount  of  $525  is  equivalent  to  an  allega- 
tion of  a  promise  by  defendant  to  pay  plaintiff  such  amount  at 
the  happening  of  the  loss.3 

§  393.  "Where  there  is  an  oral  contract  for  insurance,  the  law 
implies  that  the  insurance  is  to  be  on  such  terms  and  conditions 
as  are  ordinarily  contained  in  the  policies  issued  on  such  prop- 
erty. It  is  not  necessary,  however,  for  plaintiff  to  set  out  these 
terms  and  conditions  which  the  law  thus  holds  to  be  implied,  and 
allege  their  performance.  If  defendant  relies  upon  the  non-per- 
formance of  any  of  such  conditions,  it  must  set  them  up  as  a  sub- 
stantive defense  in  its  answer.4  If  the  petition  alleges  that  plaint- 
iff duly  fulfilled  all  the  conditions  of  the  policy  sued  on,  there  is 
no  necessity  to  specifically  aver  notice  and  proof  of  loss.5  If  in- 
terest is  not  prayed  for  in  the  petition,  no  interest  can  be  re- 
covered.6 

§  394.  Insurance  —Allegation  of  ownership.—  A  petition  on 
a  policy  of  insurance  must  allege  ownership  in  the  insured,  both 
at  the  time  of  the  issuing  of  the  policy  and  at  the  time  of  the 
fire.7  And  a  petition  which  fails  to  aver  the  ownership  of  the 
property,  both  at  the  date  of  the  insurance  and  of  its  loss,  is  fa- 
tally defective.8  A  petition  alleged  that  defendant  for  a  valuable 
consideration  did  insure  "the  following  property  of  the  plaint- 
iff," describing  the  building,  "in  the  sum  of  $600."  Such  a  peti- 
tion unqualifiedly  alleges  ownership  of  the  property  in  the 
plaintiff,  which  should,  after  verdict,  be  held  a  sufficient  allega- 
tion by  intendment  of  ownership  both  at  the  date  of  insurance 
and  date  of  loss.9    It  has  been  held  by  the  Kansas  City  court  of 

1  Wright  v.  Bankers'  Ins.  Co.,  73  App.  5  Richardson  v.  North  Missouri  Ins. 

365;  Shaver  v.  Mercantile  Ins.  Co.,  79  Co.,  57  Mo.  413. 

App.  420.  « Shaver  v.  Mercantile  Ins.  Co.,  79 

2Wright  v.  Bankers'  Ins.  Co.,  73  App.  App.  420. 

365.  1  Scott  v.  Phoenix  Ins.  Co.,  65  App. 

3  Jones  v.  Philadelphia  Underwrit-  75;  Wolf  v.  Sun  Ins.  Co.,  75  App.  306. 
era,  78  App.  296.  8  Clevinger    v.   Northwestern    Nat. 

4  Duff  v.  Fire  Association,  129  Mo.  Ins.  Co.,  71  App.  73;  Jones  v.  Phila- 
460.  The  decisions  to  the  contrary  ef-  delphia  Underwriters,  78  App.  296; 
feet  in  Duff  v.  Fire  Association,  56  Harness  v.  National  F.  Ins.  Co.,  62  App. 
App.  355.  and  in  Trask  v.  German  Ins.  245. 

Co.,  58  App.  431,  are  overruled.  »  Prendergast  v.  Dwelling  House  Ins. 

Co.,  67  App.  426. 


214  TUK   PETITION.  [§  395. 

appeals  that  an  allegation  that  defendant  insured  plaintiff  on 
"  his  "  stock  of  goods  is  not  a  sufficient  allegation  of  plaintiff's 
interest  in  the  goods,  and  that  the  defect  is  not  cured  by  verdict.1 
But  about  the  same  time  that  decision  was  rendered  the  St.  Louis 
court  of  appeals  held  that,  from  such  use  of  the  word  "his,"  an 
allegation  of  ownership  is  necessarily  implied,  at  all  events  after 
verdict;2  and  the  Kansas  City  court  of  appeals  has  also  reached 
the  same  conclusion,  having  decided  in  1899  that  the  doctrine  of 
the  Clevlnger  case1  was  not  supported  by  reason,  and  that  the 
word  "his"  made  the  averment  equivalent  to  an  averment  of 
ownership;  and  that,  even  if  it  was  a  defective  averment,  it  was 
cured  by  verdict.3  Even  if  the  ownership  is  defectively  averred 
in  the  petition,  but  language  is  used  which  clearly  indicates  own- 
ership, and  from  which  ownership  is  reasonably  inferable,  the 
petition  is  sufficient  to  support  a  judgment  in  plaintiff's  favor,  i.  e.y 
it  is  good  after  verdict.4  And  if  the  petition  fails  to  aver  either 
directly  or  indirectly  the  ownership  of  the  property,  plaintiff 
may  be  allowed,  after  a  verdict  in  his  favor,  to  amend  the  peti- 
tion by  asserting  such  allegation.5  An  allegation  that  "  plaintiff 
had  an  interest  in  all  of  the  property  insured  as  the  owner  thereof, 
to  an  amount  exceeding  the  amount  of  the  insurance  on  the  prop- 
erty," is  an  averment  of  his  ownership  of  the  property  insured.6 
But  if  it  is  alleged  that  plaintiff  ran  and  conducted  the  business 
at  the  place  mentioned  in  the  policy,  and  was  so  owning  and 
conducting  it  at  the  time  of  the  fire,  this  is  neither  an  express 
statement  of  ownership  of  the  property,  nor  is  it  one  from  which 
such  ownership  must  be  necessarily  inferred.7 

§  395,  Insurance — Alleging  value. —  Where  the  action  is 
on  a  policy  of  fire  insurance  for  the  loss  of  household  goods,  if 
the  petition  fails  to  state  the  value  of  the  goods,  it  is  not  suffi- 
cient.8   The  petition  must  allege  the  value  of  the  goods  at  the 

1  Clevinger  v.  Northwestern  Nat.  the  goods  or  the  property.  See  Eans 
Ins.  Co.,  71  App.  73.  v.  Exchange  Bank,  79  Mo.  182;  War- 

2  Bondurant  v.  German  Ins.  Co.,  73    nick  v.  Baker,  42  App.  439. 

App.  477.  4  Jones  v.  Philadelphia  Under  writ- 

3  Shaver  v.  Mercantile  Ins.  Co.,  79    era,  78  App.  296. 

App.  420.     I  confess  that  I  cannot  see  5  Cagle  v.  Chillicothe  Ins.   Co.,  78 

any  possible  ground  upon  which, under  App.  431. 

the  language  of  section  592  of  the  Code,  6  Shaver  v.  Mercantile  Ins.  Co.,  79 

a  court  should  have  any  hesitancy  in  App.  420;  Jones  v.  Philadelphia  Un- 

holding  that  the  averment  that  the  derwriters,  78  App.  296. 

insurance  was  taken  "  on  his  stock  of  7  Story  v.  American  Cent.  Ins.  Co., 

goods,"  or  "on  his  property,"'  is  a  di-  61  App.  534. 

rect  averment  that  plaintiff  owned  8  Story  v.  American  Cent.  Ins.  Co., 


§§  306,  397.]  F0EEG0IXG   RULES   APPLIED.  215 

time  of  their  destruction.1  The  words  "to  plaintiff's  damage  in 
the  sum  of  $1-00  "  is  a  mere  conclusion  of  law,  and  cannot  be 
considered  an  averment  of  the  value  of  the  property  destroyed.2 

§  396.  Action  upon  accident  policy. —  In  an  action  upon  an 
accident  insurance  policy  the  petition  must  expressly  allege  that 
the  injury  from  which  the  assured  died  was  incurred  by  him 
from  external,  violent  and  accidental  means.3  A  petition  alleged 
the  issuance  of  the  policy  for  a  valuable  consideration,  the  rela- 
tion of  the  plaintiff  to  the  assured,  the  death  of  the  assured  by 
an  accident  not  excepted  in  the  policy,  that  proofs  of  death  were 
duly  furnished  in  accordance  with  the  requirements  of  the  pol- 
icy, and  that  the  plaintiff  had  duly  performed  all  the  conditions 
of  the  policy  on  her  part.  It  was  held  that  nothing  more  was 
necessary  to  be  stated  to  entitle  the  plaintiff  to  recover.4 

§  397.  Action  on  benefit  certificate, —  In  an  action  against  a 
benefit  or  assessment  society  the  petition  is  defective  if  it  fails 
to  aver  that  due  proof  has  been  made  of  the  death  of  the  holder 
of  the  certificate.5  Where  the  certificate  provides  that  in  case  of 
the  death  of  a  member  the  association  will  make  an  assessment 
on  its  surviving  members  and  pay  the  amount  collected,  not  ex- 
ceeding $1,000,  to  the  beneficiary,  a  petition  is  good  which,  after 
the  allegations  as  to  the  issuance  of  the  certificate,  the  death  of 
the  member,  the  notice,  etc.,  avers  that  the  defendant  had  re- 
fused to  make  the  assessment  which  it  had  agreed  to  make,  and 
that  if  such  assessment  had  been  made,  defendant  could  and 
would  have  realized  the  sum  of  $1,000.6  "Where  a  certificate  in 
such  an  association  was  surrendered  by  the  member  for  a  valuable 
consideration,  and  after  his  death  the  beneficiary  claimed  that 
the  member  was  insane  at  the  time  of  the  surrender,  and  that 
the  surrender  was  therefore  void,  but  does  not  allege  in  her  peti- 
tion that  the  member  was  at  the  time  under  guardianship,  nor 
that  plaintiff  was  ready  to  return  the  consideration  received  by 
the  member  for  the  surrender,  and  was  willing  to  pay  all  assess- 

Gl  App.  531;  Green  v.  Lancashire  Ins.  3  Hester  v.  Fidelity  &  Casualty  Co., 

Co.,  69  App.  429;  Wright  v.  Bankers'  69  App.  186. 

Ins.  Co.,  73  App.  365;  Sappington  v.  *  Howe  v.  Pacific  Mut.  Life  Ins.  Co., 

St  Joseph  Mut.  F.  Ins.  Co.,  72  App.  74.  75  App.  63. 

1  Ramsey  v.  Philadelphia Underwrit-  5 Taylor  v.  National  Temperance 
ers,  71  App.  380.  Relief  Union,  94  Mo.  35. 

2  Story  v.  American  Cent.  Ins.  Co.,  6  Taylor  v.  National  Temperance 
61  App.  534.  Relief  Union,  94  Mo.  35;  Herndon  v. 

Triple  Alliance,  45  App.  426. 


216  THE    PETITION.  [§§  39S-403. 

ments  which  the  member  would  have  been  obligated  to  pay  sub- 
sequent to  the  time  of  the  surrender,  it  is  fatally  defective.1 

§  398.  Proceeding  for  injunction. —  The  rules  governing  bills 
for  an  injunction  will  be  found  in  sections  484,  4S5, post. 

§  390.  Action  on  judgment. —  Where  the  action  is  based  upon 
a  judgment  of  a  circuit  court  of  the  United  States,  it  is  not 
necessary  to  set  out  the  facts  showing  that  the  federal  court  had 
jurisdiction.2 

§  400.  Reviewing  judgment. —  Where  a  defendant  who  has 
not  appeared  or  been  summoned,  but  has  been  brought  in  by 
publication,  applies  under  sections  777  and  780  3  for  a  review  of 
such  judgment,  his  application  must  show  that  the  petition  upon 
which  the  judgment  was  procured  is  untrue  in  some  material 
matter,  or  that  he  has  and  then  had  a  good  defense  to  the  peti- 
tion ;  and  such  defense  must  be  set  forth  substantially  as  is  re- 
quired in  an  answer.4 

§401.  Action  between  landlord  and  tenant. —  In  an  action 
for  use  and  occupation  the  petition  must  state  that  the  relation 
of  landlord  and  tenant  existed  between  the  parties.5  The  peti- 
tion is  good  if  it  alleges  that  the  use  was  permitted,  though  it 
does  not  aver  that  the  right  to  compensation  for  such  use  was 
reserved,  and  does  not  state  when  the  occupation  and  user 
began.6 

§  402.  Where  a  bill  is  filed  to  restrain  a  nuisance,  alleging  that 
plaintiff  is  a  tenant  and  occupier  of  the  premises,  without  stating 
the  nature  and  duration  of  the  tenancy,  this  is  equivalent  to  an 
averment  of  a  tenancy  from  month  to  month.7  Where  a  tenant 
brings  an  action  against  his  landlord  for  injury  to  his  crops,  and 
merely  recites  a  renting  of  the  premises  on  shares,  and  states 
that  the  landlord's  cattle  broke  into  the  field  and  destroyed  the 
crops,  it  states  no  cause  of  action.8 

§  403.  Actions  for  malicious  prosecution. —  In  an  action  for 
malicious  prosecution,  a  petition  is  good  which  alleges  in  sub- 
stance that  the  defendant,  acting  with  malice  and  without  prob- 

i  Wells  v.  Covenant  Mut.  Ben.  Ass'n,  5  Young  v.   Downey,  145    Mo.  261. 

126  Mo.  630.  See  also  Walker  v.  Mauro,  18  Mo.  564. 

-  Wonderly    v.    Lafayette    County,  6  Allen  v.  Wabash,  St.  Louis  &  Pac. 

150  Mo.  635.  R.  Co.,  84  Mo.  646.     Consult  also  peti- 

The  decisions  as  to  pleading  juris-  tions  in  actions   for   trespass,  §  478, 

diction  will  be  found  in  §  273,  ante.  post. 

s  Rev.  Stat.  1899.  7  Clark  v.  Thatcher,  9  App.  436. 

*  Lindell  Real  Estate  Co.  v.  Lindell,  »Fenton  v.  Montgomery,  19    App. 

142  Mo.  61.  156. 


§  404.]  FOREGOING   RULES   APPLIED.  217 

able  cause,  procured  the  issue  of  a  warrant  charging  the  plaintiff 
with  a  crime,  that  plaintiff  was  arrested  on  the  warrant,  that  the 
prosecution  has  been  dismissed  by  the  defendant,  and  the  plaintiff 
discharged.1  If  the  petition  omits  to  state  that  the  prosecution 
was  malicious,  and  that  the  plaintiff  was  acquitted,  it  is  insuffi- 
cient.2 If  the  action  is  against  a  municipal  corporation,  based 
upon  a  malicious  prosecution  of  a  suit  for  taxes,  the  petition  must 
allege  facts  sufficient  to  enable  the  court  to  determine  whether 
or  not  the  corporation  had  authority  to  levy,  impose  and  collect 
the  taxes  involved,  and  it  must  also  appear  what  they  were  for, 
and  when  and  how  they  were  imposed.3  If  the  action  against 
the  municipal  corporation  is  for  a  false  imprisonment  by  its  offi- 
cers, the  petition  is  fatally  defective  if  it  fails  to  state  that  de- 
fendant was  arrested  for  the  violation  of  one  of  the  city  ordinances, 
or  omits  to  set  out  the  cause  of  said  arrest.4  If  the  petition  ad- 
mits that  plaintiff  was  convicted  of  the  charge  preferred  against 
him,  but  alleges  that  such  conviction  was  brought  about  by  the 
fraudulent  practices  of  the  defendant,  and  that  by  defendant's 
abuse  of  legal  process  plaintiff  was  deprived  of  the  testimony  of 
his  principal  witness,  it  states  a  cause  of  action,  since  such  acts 
of  defendant  countervail  the  presumption  arising  from  plaintiff's 
conviction.8 

§  404.  For  malicious  attachment. —  "Where  the  action  is  for  a 
malicious  attachment,  if  the  petition  does  not  allege  both  want 
of  probable  cause  and  malice,  it  is  fatally  defective.6  And  it  is 
not  sufficient  to  allege  malice,  if  there  is  no  averment  of  a  want 
of  probable  cause; 7  for  in  the  absence  of  an  allegation  of  a  want 
of  probable  cause,  the  presumption  is  that  the  attaching  plaint- 
iff had  reasonable  cause  to  bring  the  action.6  If,  however,  the 
action  is  not  founded  upon  a  malicious  suing  out  of  the  attach- 
ment, but  is  simply  for  a  wrongful  attachment,  and  is  an  action 
of  such  a  nature  that  it  might  have  been  maintained  upon  the  at- 
tachment bond,  there  is  no  occasion  for  an  allegation  of  malice 
and  want  of  probable  cause,  and  such  allegation  will  be  improper. 
Yet,  if  plaintiff  seeks  to  recover  for  a  malicious  attachment,  he 
may  in  a  single  count  allege  the  wrongful  attachment  and  the 
existence  of  malice,  and  if  he  fails  to  establish  the  malice  he  may 

i  Eagleton  v.  Kabrich,  60  App.  231.  *  Worley  v.  Columbia,  88  Mo.  106. 

2Mooney  v.  Kennett,  19  Mo.   551;  6  Boogher  v.  Hough.  99  Mo.  183. 

Hilbrant  v.  Donaldson,  69  App.  92.  6  Witascheck  v.  Glass,  46  App.  209. 

a  Brown  v.  Cape  Girardeau,  90  Mo.  7  Moody  v.  Deutsch,  85  Mo.  237. 
377. 


218  the  vktition.  [§§  405,  406. 

nevertheless  recover  such  damages  as  would  be  recoverable  in  an 
action  on  the  bond.1  The  same  rule  applies  in  an  action  for  ma- 
licious attachment  as  in  an  action  for  malicious  prosecution,  that 
the  petition  must  show  a  termination  of  the  proceeding.  There- 
fore a  petition  in  an  action  for  malicious  attachment  which  fails 
to  show  either  that  the  attachment  proceeding  has  terminated  in 
favor  of  the  attachment  defendant,  or  that  it  has  terminated 
against  him  and  that  he  had  no  opportunity  to  defend  against  it, 
is  fatally  defective,  and  the  defect  is  not  cured  by  verdict.2 

§405.  Actions  for  malpractice. —  A  petition  in  an  action 
against  a  physician  for  malpractice  which  alleges  that  defendant 
so  negligently,  carelessly  and  unskilfully  treated  and  managed 
said  injury  that  said  fractured  bones  were  not  set  and  placed, 
and  caused  to  remain  in  their  proper  positions,  is  a  sufficient  state- 
ment of  a  cause  of  action.3  If  the  petition  alleges  that  the  de- 
fendant undertook  to  reduce  and  set  a  bone,  and  to  attend,  cure 
and  heal  the  same,  and  also  alleges  that  he  promised  to  carefully 
and  skilfully  perform  said  service,  but  that  he  carelessly,  negli- 
gently and  unskilfully  failed  to  set,  locate  and  reduce  the  dislo- 
cation, etc.,  it  cannot  be  construed  as  alleging  an  express  promise 
to  cure,  but  only  such  an  undertaking  as  the  law  implies,  that  is 
to  employ  reasonable  skill  and  diligence.4 

§  40C>.  Breach  of  promise  of  marriage. —  In  an  action  for 
breach  of  promise  to  marry,  if  the  promise  alleged  does  not  as- 
certain and  fix  the  time  of  the  marriage,  the  petition  must  allege 
a  special  request  by  plaintiff  that  defendant  marry  her,  unless 
defendant  by  manwing  another  has  incapacitated  himself  from 
performing  his  engagement;  and  in  such  case  that  fact  should 
be  alleged.  Plaintiff  must  also  aver  not  only  that  defendant  did 
not  marry  her,  but  also  that  she  was  willing  and  offered  to  marry 
him,  and  that  he  refused  her  before  suit  was  brought;  or,  at  least, 
that  there  was  upon  his  part  so  positive  and  unequivocal  a  refusal 
to  marry  her,  as  would  as  a  matter  of  law  relieve  her  of  the 
necessity  of  actually  offering  to  marry  him.5  There  must  be  an 
allegation  that  defendant  promised  to  marry  plaintiff  in  con- 
sideration of  the  plaintiff's  promise  to  marry  defendant.6  An 
independent  action  for  seduction  cannot  be  joined  with  an  action 
for  breach  of  promise.4   But  the  woman,  and  she  alone,  can  main- 

i  Fry  v.  Estes,  52  App.  1.  3  Carpenter  v.  McDavitt,  53  App.  393. 

2Freymark  v.  McKinney  Bread  Co.,  4Vanhooser  v.  Berghoff,  90  Mo.  487. 

55  App.  435.     As  to  pleading  malice  5Cole  v.  Holliday,  4  App.  94. 

generally,  see  ante,  g  335.  6 Roper  v.  Clay,  18  Mo.  383. 


§§  407,  408.]  FOREGOING   KULES    APPLIED.  219 

tain  an  action  for  seduction  accomplished  under  a  promise  of 
marriage.1 
§  407,  Actions  between  master  and  servant— For  services. — 

"Where  an  employee  has  been  improperly  discharged  by  his  em- 
ployer before  his  term  of  service  has  expired,  there  are  two  reme- 
dies open  to  him.  He  may  immediately  bring  his  action  for  breach 
of  the  contract  of  employment,  or  he  may  wait  until  the  end  of 
the  term  for  which  he  was  employed  and  then  sue  for  his  entire 
wages.2  Both  these  remedies  are  based  upon  the  theory  that  the 
contract  is  still  valid  and  subsisting.  He  may,  however,  elect  to 
treat  the  contract  as  rescinded,  and  recover  on  a  quantum  meruit 
for  the  services  actually  rendered.3  If  the  action  is  brought  be- 
fore the  expiration  of  the  term,  the  measure  of  damages  is  not  the 
contract  price  of  his  services  for  the  whole  term,  but  the  amount 
of  the  damages  is  a  question  for  the  jury  under  all  the  circum- 
stances of  the  case.4  If  the  party  proposes  to  consider  the  con- 
tract rescinded  and  recover  for  the  value  of  the  services  rendered, 
he  must  set  out  the  contract,  the  rendition  of  services  thereunder, 
the  wrongful  termination  of  the  contract  by  the  defendant,  and 
then  declare  for  the  value  of  the  services  rendered.5  A  petition 
which  sets  forth  that  plaintiff  was  employed  by  defendant  for  one 
year  at  a  stated  price  per  month,  that  he  worked  for  defendant 
for  several  months,  and  was  willing  to  work  the  remaining  portion 
of  the  time,  but  that  defendant  failed  and  refused  to  comply  in 
any  manner  with  the  terms  of  the  contract,  and  to  pay  plaintiff 
for  the  services  rendered,  and  which  contains  a  prayer  for  judg- 
ment for  the  year's  salary,  is  bad,  since  the  failure  to  pay  plaint- 
iff's salary  would  justify  him  in  abandoning  the  employment,  and 
would  entitle  him  to  recover  for  the  services  actually  performed, 
but  would  not  authorize  a  recovery  for  the  work  which  was  un- 
performed.6 

§408.  Master  and  servant  —  Injury  to  employee. —  Where 
the  relation  of  employer  and  employee  between  the  parties  at  the 
time  of  the  injury  is  sufficiently  alleged  in  the  petition,  the  law 
does  not  require  plaintiff  to  plead  defendant's  legal  duty  to  him 
as  an  employee.     Thus,  where  it  is  alleged  that  while  plaintiff 

i  Comer  v.  Taylor,  82  Mo.  341.  »  Glover  v.  Henderson,  120  Mo.  367. 

2Booge  v.  Tacific  Railroad,  33  Mo.  6  Weber  v.   Union  Mutual   L.  Ins. 

212;  Halsey  v.  Meinrath,  54  App.  33.r>.  Co.,  5  App.  51. 

3  Ehrlich  v.  iEtna  Life  Ins.  Co.,  88  For  action  by  real-estate  agent  for 
Mo.  249.  commissions,  see  §  449,  post. 

4  Ream  v.  Watkins,  27  Mo.  51G. 


220  THE    PETITION.  [§§409,410. 

was  in  the  employ  of  defendant  he  was  required  by  defendant 
to  work  in  a  place  which  was  rendered  unsafe  and  dangerous  by 
reason  of  certain  negligent  acts  and  doings  of  men  engaged  in 
repairing  defendant's  factory,  in  consequence  of  which  he  was 
injured,  the  petition  is  sufficient.  Whether  this  constituted  a 
breach  of  defendant's  duty  is  a  conclusion  of  law,  which  plaintiff 
is  not  required  to  plead.1 

§409.  Same  —  By  defective  appliances. —  Where  an  action 
is  brought  by  an  employee  based  upon  the  employer's  negligence 
in  furnishing  improper  appliances,  the  petition  must  charge  that 
the  employer  either  knew  or  might  have  known  of  the  danger- 
ous and  defective  construction  of  the  appliance,  or  it  must  con- 
tain some  equivalent  averment.2  An  allegation  that  defendant 
negligently  furnished  plaintiff  an  appliance  which  was  not  safe  or 
sound  is  an  equivalent  averment,  and  is  sufficient.3  If  the  defect 
is  pointed  out  with  particularity,  it  is  not  necessary  that  the  alle- 
gation should  show  whether  the  defect  was  in  the  original  con- 
struction or  arose  from  want  of  repair.4  Plaintiff  is  not  bound  to 
state  whether  or  not  the  employee  was  experienced  or  inexperi- 
enced, or  whether  the  employer  had  given  him  any  assurance  of 
the  sufficiency  of  the  appliance,  or  whether  the  danger  to  which 
he  was  subjected  was  obvious  or  hidden.5  ISTor  need  it  be  alleged 
either  that  plaintiff  did  not  know,  or  could  not  have  known  by  the 
exercise  of  ordinary  care,  the  dangerous  or  defective  construction 
of  the  appliance.6  A  petition  which  charges  that  a  railroad  com- 
pany negligently  and  carelessly  permitted  a  loose  iron  rail  to  re- 
main upon  the  path  alongside  the  track  used  by  switchmen  in 
the  necessary  discharge  of  their  duties,  by  reason  of  which  the 
injury  occurred,  is  not  defective  because  it  failed  to  allege  that 
the  agents  of  defendant  had  knowledge,  or  by  ordinary  atten- 
tion to  their  duties  would  have  known,  that  the  rail  lay  upon  the 
path.7 

§410.  Same  — By  an  incompetent  fellow-servant. —  Where 
the  petition  charges  that  the  injury  was  caused  by  the  negli- 
gence of  a  co-employee,  and  alleges  that  defendant  failed  to  em- 

JSackewitz    v.    American    Biscuit  340;  Crane  v.  Mo.  Pac.  R.  Co.,  87  Mo. 

Co.,  78  App.  144.  588. 

2  Current  v.  Mo.  Pac.  R.  Co.,  86  Mo.  <Gutridge  v.  Mo.  Pac.  R.  Co.,  94  Mo. 
62;  Crane  v.  Ma  Pac.  R.  Co.,  87  Mo.  468. 

588;   Johnson  v.  Mo.  Pac.  R.  Co.,  96        5  Fugler  v.  Bothe,  43  App.  44. 

Ma  340.  e  Crane  v.  Mo.  Paa  R  Co.,  87  Mo.  588. 

3  Johnson  v.  Mo.  Pac.  R  Co.,  96  Mo.        7  Hall  v.  Mo.  Paa  R  Co.,  74  Mo.  298. 


§  411.]  FOREGOING   KULES   APPLIED.  221 

ploy  skilful  servants,  but  fails  to  allege  want  of  care  and  dili- 
gence in  the  selection  of  its  servants,  it  is  bad.1 

§  411.  Liability  of  employer  for  employee's  act. —  In  an  ac- 
tion brought  by  a  third  person  against  an  employer,  based  upon 
the  acts  of  the  employee,  the  first  point  to  be  decided  in  deter- 
mining the  liability  of  the  employer  is  whether  the  acts  com- 
plained of  were  such  as  were  within  the  authority  of  the  em- 
ployee. That  point  being  settled,  there  remains  the  question  of 
pleading.  "What  averments  as  to  the  authority  is  it  necessary 
for  the  plaintiff  to  make  ?  To  render  the  employer  liable,  the 
act  of  the  employee  must  have  been  done  in  the  line  of  his  em- 
ployment, and  in  furtherance  of  the  employer's  business.2  Be- 
yond the  scope  of  his  employment  the  employee  is  as  much  a 
stranger  to  his  employer  as  is  any  third  person.3  It  logically 
follows  that  the  petition  in  such  a  case  must  either  contain  direct 
averments  that  the  employee  was  acting  in  the  line  of  his  em- 
ployment, and  that  the  act  complained  of  was  done  in  further- 
ance of  the  business  of  his  employer,  or  facts  must  be  alleged 
from  which  the  law  will  infer  the  duty  and  the  authority  of 
the  employee.  In  the  case  last  cited,3  it  is  held  by  a  majority 
of  Division  No.  2  that,  if  the  petition  states  the  relation  from 
which  the  duty  and  authority  necessarily  flow,  it  is  sufficient, 
without  a  formal  averment.4  In  a  later  decision  by  the  court  of 
appeals  it  is  said  that,  though  the  petition  does  not  contain  an 
allegation  that  the  act  was  committed  by  the  employee  while  he 
was  in  discharge  of  the  particular  duties  pertaining  to  that  em- 
ployment, yet  the  petition  is  not  demurrable  on  that  ground,  if 
the  omitted  allegation  might  reasonably  be  implied  from  other 
allegations  in  the  petition.5  But  that  these  decisions  do  not 
warrant  the  conclusion  that  a  mere  general  averment  of  the  re- 
lation, and  that  the  act  was  committed  by  the  employee,  is  suf- 
ficient, is  evident  from  what  is  said  in  Snyder  v.  Hannibal  &  St. 
J.  R.  Co.,6  Hough,  J.,  expressing  the  unanimous  opinion  of  the 
court.    He  says:  "  The  mere  fact  that  a  tortious  act  is  committed 

1  Moss  v.  Pacific  Railroad,  49  Mo.  167.    sented.  The  decision  appears,  however, 
Sections  421  et  seq.,  post,  should  be    to  be  in  line  with  the  earlier  decis- 

consulted  in  this  connection.  ions  of  Travers  v.  Kansas  Pac.  R.  Co., 

2  See  cases  cited  in  Pattison's  Digest,    03  Mo.  421,  and  Voegeli  v.  Pickel  Mar- 
vol.  3,  pp.  2321  et  seq.,  vol.  5,  p.  640.  ble  Co.,  49  App.  643. 

» McPeak  v.  Mo.  Pac.  R.  Co.,  128  Mo.        5  Todd  v.  Havlin,  72  App.  565. 
617.  6  60  Mo.  413. 

4  From  this  view  Sherwood,  J.,  dis- 


222  THE    PETITION.  [§    1  L2. 

by  a  servant  while  he  is  actually  engaged  in  the  performance  of 
the  service  he  has  been  employed  to  render  cannot  make  the 
master  liable.  Something  more  is  required.  It  must  not  only 
be  done  while  so  employed,  but  it  must  pertain  to  the  particular 
duties  of  that  employment.  The  general  statement  that  the  acts 
of  defendant's  servants  were  within  the  range  of  their  employ- 
ment is  a  mere  conclusion  of  law  which  cannot  help  the  aver- 
ment of  facts  and  can  avail  nothing."  1 

§  4:12.  Action  to  enforce  a  mechanic's  Hen In  its  main  feat- 
ures a  petition  in  an  action  to  enforce  a  mechanic's  lien  does  not 
differ  from  a  petition  in  an  ordinary  action  at  law.  Section  4210 2 
expressly  provides  that  the  pleadings  and  other  proceedings  shall 
be  the  same  as  in  ordinary  civil  actions,  except  as  otherwise  pro- 
vided in  the  statute.  But  in  such  cases  the  petition  must  con- 
tain certain  additional  averments,  so  as  to  clearly  set  forth  a 
compliance  with  the  statutory  requirements  essential  to  perfect 
the  lien.  The  section  just  cited  provides  in  this  respect  that  the 
petition  must  allege  the  existence  of  the  facts  necessary  for  se- 
curing a  lien  under  the  statute,  and  must  contain  a  description 
of  the  property  to  be  charged  with  the  lien.  Every  fact  neces- 
sary to  secure  the  lien  must  appear  in  the  petition  itself,  and  it  is 
not  sufficient  that  the  lien  paper  filed  with  the  circuit  clerk  shows 
these  facts.3  The  petition  must  show  that  the  contract  was  made 
with  some  one  having  an  estate  or  interest  in  the  land  on  which 
the  improvement  was  erected,  and  must  also  show  who  is  the 
owner  of  the  land.4  If  it  fails  to  state,  at  least  by  necessary  im- 
plication, that  the  improvement  was  erected  under  a  contract 
with  one  having  an  interest  or  ownership  in  the  land  to  be 
charged,  it  is  fatally  defective  even  after  verdict.5  If  there  is 
a  general  allegation  that  one  defendant  was  the  owner  and  the 
other  the  original  contractor,  it  will  be  assumed  that  the  one 
named  as  original  contractor  made  the  contract  with  the  one 
named  as  owner.6  It  is  not  a  fatal  defect  that  the  contract  is 
alleged  to  have  been  made  with  the  husband  while  the  land  be- 
longed to  the  wife,  if  the  allegation  sufficiently  shows  that  the 
contract  was  made  for  her  use.7  If  the  action  is  by  a  subcon- 
tractor, an  averment  is  not  necessary  that  the  materials  were  f  ur- 

1 60  Mo.  419.  6  Peck  v.  Bridwell,  6  App.  451. 

2  Rev.  Stat  1899.  6  Cole  v.  Barron,  8  App.  509. 

3  Fay  v.  Adams,  8  App.  566.  'Burgwald  v.  Weippert,  49  Mo.  60. 

4  Porter  v.  Tooke,  35  Ma  107. 


§§  413-416.]       FOREGOING  KULES  APPLIED.  223 

nished  or  the  labor  performed  by  plaintiff  upon  request  of  the 
owner  of  the  property.1 

§  413.  The  petition  should  set  out  the  date  when  the  mate- 
rials were  furnished  and  the  labor  was  done,  and  when  the  ac- 
count accrued,  and  also  the  date  of  the  filing  of  the  lien.2  It 
must  not  only  show  the  date  of  the  filing,  but  it  must  show  that 
the  account  was  filed  in  the  proper  office.3  Plaintiff  need  not, 
however,  allege,  that  he  commenced  his  suit  within  ninety  days 
after  the  filing  of  the  lien.4  If  there  is  an  allegation  that  the 
demand  became  due  on  a  certain  day,  and  that  within  four 
months  thereafter  the  account,  etc.,  for  the  lien  was  filed,  this  is 
the  statement  of  a  constitutive  fact  and  not  of  a  mere  conclusion 
of  law.5 

§  414.  In  an  action  brought  by  a  subcontractor  it  is  essential  that 
the  petition  should  show  that  the  materials  were  furnished  for  the 
building  described ;  it  is  not  sufficient  to  allege  merely  that  the 
materials  actually  went  into  the  building,6  although  this  last  alle- 
gation also  appears  to  be  necessary.7  But  it  would  seem  that 
this  last  averment  is  not  essential  where  the  materials  were  fur- 
nished directly  to  the  owner  of  the  property;  it  is  only  essential 
where  they  are  furnished  to  a  contractor  or  a  subcontractor.8 

§  415.  Proceeding  to  foreclose  a  mortgage. —  A  mortgagee 
has  three  concurrent  remedies.  He  may  file  his  bill  to  foreclose ; 
or  he  may  bring  an  action  at  law  for  the  recovery  of  the  mortgage 
debt;  or  he  may,  after  there  has  been  a  forfeiture,  bring  an  ac- 
tion of  ejectment  to  recover  possession  of  the  mortgaged  prem- 
ises.9 He  may  resort  to  any  one  or  more  of  these  concurrent 
remedies,  and  does  not  lose  his  right  to  foreclose  by  obtaining  a 
general  judgment  on  the  secured  notes.10  And  the  cestui  que 
trust  in  a  deed  of  trust  has  the  same  choice  of  concurrent  reme- 
dies.11 

§  416.  A  petition  for  the  foreclosure  of  a  mortgage  under  section 
4342 12  is  a  proceeding  at  law  and  not  in  equity.     And  the  juris- 

1  McLaughlin    v.    Schawacker,    31  7  Grace  v.  Nesbitt,  109  Mo.  9. 

App.  365.  8  Rail  v.  McCrary,  45  App.  365. 

2Heltzell  v.  Langford,  33  Mo.  396;  9  Thornton  v.  Pigg,  24  Mo.  249. 

Bradish  v.  James,  83  Mo.  313.  10  Kansas  City  Savings  Ass'n  v.  Mas- 

3  Gault  v.  Soldani,  34  Mo.  150.  tin,  61  Mo.  435. 

4  Twitchell  v.  Devens,  45  App.  283.  "  Owings  v.  McKenzie,  133  Mo.  323. 

5  Henry  v.  Hinds,  18  App.  497.  "  Rev.  Stat.  1899. 
SFathman  &  Miller   Planing   Mill 

Co.  v.  Ritter,  33  App.  404. 


224  'hie  petition.  [§§417,418. 

diction  must  be  exercised  not  according  to  the  doctrines  and 
practice  of  equity,  but  according  to  the  practice  and  principles 
of  law.1  But  while  it  is  a  legal  proceeding,  it  has  never  been 
held  in  this  state  that  the  above  section  deprives  the  court  on 
its  equity  side  of  jurisdiction  to  afford  relief  in  proper  cases; 
and  the  general  rule  that  courts  of  equity  have  jurisdiction  in  such 
cases  is  well  established.2  The  statutory  mode  of  procedure  is 
not  exclusive.*  If  the  proceeding  is  brought  under  section  4342, 
and  the  debt  consists  of  more  than  one  note,  it  seems  that  the 
petition  should  count  separately  on  each  note.4 

§  417.  Suits  by  or  against  municipal  corporations. —  In  an 
action  by  a  municipality,  an  allegation  that  plaintiff  is  a  corpora- 
tion duly  incorporated  under  and  by  virtue  of  a  certain  act  is 
sufficient.5  And  a  public  act  creating  a  municipal  corporation 
need  not  be  pleaded.6  Where  in  an  action  against  a  city  it  is 
alleged  that  defendant  is  a  corporation  created  and  organized 
under  the  provisions  of  article  Y  of  chapter  89  of  the  Revised 
Statutes,7  this  is  a  sufficient  allegation  that  the  city  is  incorpo- 
rated as  a  city  of  the  fourth  class.8  Where  a  municipality  is  or- 
ganized under  a  general  statute  requiring  the  action  of  the  county 
court,  it  is  not  necessary  in  alleging  its  existence  to  set  out  the 
facts  preliminary  to  the  grant  of  the  order,  and  upon  which  the 
order  was  founded.9  If  it  is  incorporated  by  a  private  act,  such 
act  must  be  pleaded  and  proved.  It  is  sufficient,  however,  to 
plead  it  by  its  title  and  date  of  passage ;  and  when  so  pleaded 
the  court  will  take  judicial  notice  of  its  provisions,  and  it  is  not 
necessary  for  plaintiff  to  produce  it  in  evidence.10 

§418.  Same  —  Action  on  concession. —  A  city  conceded  to 
certain  parties  certain  rights  as  to  supplying  the  city  with  water. 
These  rights  were  afterwards  assigned  to  a  third  party,  who 

1  Mason  v.  Barnard,  36  Mo.  384;  5  Chillicothe  Savings  Ass'n  v.  Rueg- 
Fithian  v.  Monks,  43  Mo.  502;  Smith  v.    ger,  60  Mo.  218. 

Finn,  77  Mo.  499.  6  Nutter  v.  Chicago,  R.  I.  &  Pac.  R 

2  Wolff  v.  Ward,  104  Ma  127.  Co.,  22  App.  328 ;  Bowie  v.  Kansas  City, 

3  Rubey  v.  Forcht,  21  App.  159.     A    51  Mo.  454. 

bill  in  equity  for  foreclosure  which  is  7  Rev.  Stat.  1879. 

approved  by  the  supreme  court  will  8  Eubank  v.  Edina,  88  Mo.  650. 

be  found  in  Wolff  v.  Ward,  104  Mo.  9  State  ex  rel.  v.  Weatherby,  45  Mo. 

127.  17. 

*  Dewey  v.  Leonhardt,  27  App.  517.  10  O'Brien  v.  Wabash,  St  L.  &  Pac. 

For  decisions  in  case  of  a  bill  to  re-  R  Co.,  21  App.  12;  Apitz  v.  Mo.  Pac. 

deem  or  to  set  aside  a  foreclosure  sale,  R.  Co.,  17  App.  419;  Harlan  v.  Wabash, 

see  §§  487-489,  post.  St.  L.  &  Pac.  R  Co.,  18  App  483. 


§§  419,  420.]  FOREGOING   RULES    APPLIED.  L25 

made  a  contract  with  the  city  in  accordance  therewith.  In  an 
action  brought  on  the  contract,  the  petition  contained  no  refer- 
ence to  the  assignment  to  plaintiff  of  the  rights  of  the  original 
parties  named  in  the  concession  from  the  city.  But  it  was  held 
that  this  omission  was  not  fatal  to  the  petition,  since  it  was  not 
essential  that  plaintiff  should  set  up  the  intermediate  assignments 
by  which  he  secured  his  right,  he  having  himself  made  the  con- 
tract.1 

§  419.  Same  —  Suit  by  officer. — In  an  action  against  a  city 
to  recover  the  fees  and  emoluments  of  office  of  which  plaintiff 
claims  he  has  been  wrongfully  deprived,  his  petition  must  allege 
either  that  he  was  in  possession  of  the  office  and  was  wrongfully 
ousted  from  it,  or  that  he  claimed  the  fees  and  that  such  claim 
has  been  judicially  determined  to  be  good.2 

§420.  Same  —  For  personal  injuries. —  In  an  action  against 
a  city  to  recover  for  injuries  caused  by  a  defective  sidewalk,  the 
petition  must  allege,  either  directly  or  by  necessary  implication, 
that  the  sidewalk  was  in  an  unsafe  or  dangerous  condition  for 
ordinary  travel.  It  is  not  sufficient  to  allege  that  the  sidewalk 
was  defective  or  imperfect.8  It  is  not  necessary  to  allege  that 
the  defendant  city  knew  of  the  particular  opening  or  defect  in 
the  sidewalk  which  caused  the  injury.  It  is  sufficient  if  the  peti- 
tion contains  an  allegation  that  the  walk  was  defective  at  the 
place  of  the  injury,  that  the  city  officials  knew  of  its  condition, 
or  that  the  condition  had  existed  for  such  a  length  of  time  as  to 
raise  the  presumption  of  knowledge  on  their  part,  and  that  the 
injury  was  the  result  of  defendant's  failure  to  repair  the  walk.4 
It  is  not  essential  in  such  an  action  that  the  petition  should  con- 
tain an  averment  that  the  city  owned  the  sidewalk,  or  that  it 
authorized  its  construction,  or  that  it  had  adopted  it  as  its  own, 
provided  there  are  other  allegations  in  the  petition  showing  the 
duty  of  the  city  to  keep  the  sidewalk  in  repair.5  If  the  injuries 
were  caused  by  an  obstruction  in  the  street,  and  the  petition 
charges  that  the  defendant  failed  and  neglected  to  keep  the  street 
in  a  safe  and  suitable  condition  for  the  use  of  the  public,  and  un- 
lawfully and  negligently  suffered  the  same  to  be  obstructed,  it 

1  Lamar  Water  &  El.  Co.  v.  Lamar,  cover  municipal  taxes  will  be  found 
140  Mo.  145.  in  gg  474,  475,  post. 

2  Hughlett  v.  Wellsville,  75  App.  341.  3  Young  v.  Kansas  City,  45  App.  600; 
See  also  post,  §§  440-444.  Plummer  v.  Milan,  70  App.  598. 

The  rules  governing  petitions  to  re-        4  Rusher  v.  Aurora,  71  App.  418. 

s  Haire  v.  Kansas  City,  7G  Mo.  438. 
Mo.  Code  Pl.—  15 


226  THE   PETITION.  [§  421. 

charges  facts  from  which  it  may  be  reasonably  inferred  that  de- 
fendant had  notice  of  its  dangerous  condition,  and  Avill  be  held 
good  after  verdict.1  AVhere  a  pond  was  situated  partly  on  the 
Street  of  a  city  and  partly  on  an  adjoining-  lot  belonging  to  a 
private  owner,  and  a  child  skating  on  the  pond  broke  through 
and  was  drowned,  if  the  action  against  the  city  is  based  on  the 
ground  that  the  pond  was  a  public  nuisance  which  the  city  was 
bound  to  abate,  there  must  be  an  allegation  that  the  child  broke 
through  the  ice  on  that  portion  of  the  pond  which  was  within 
the  limits  of  the  city.2 

§  421.  In  actions  based  on  negligence. —  In  actions  for  inju- 
ries occasioned  by  negligence,  it  must  be  borne  in  mind  that,  even 
under  the  code  system,  the  fundamental  principle  is  to  be  applied 
that  the  petition  to  be  valid  must  contain  such  facts  as,  if  they 
were  admitted,  would  justify  the  court  in  rendering  judgment 
for  the  plaintiff.3  There  can  be  no  recovery  upon  a  general  alle- 
gation of  negligence  which  gives  no  notice  of  facts,  but  states 
only  conclusions.4  The  acts,  which  it  is  intended  to  show  wero 
ne£rligentlv  done  or  omitted  to  be  done,  should  be  set  out  with  a 
reasonable  degree  of  particularity,  and  in  some  appropriate  form 
of  expression  it  must  be  charged  that  they  were  negligently  done, 
or  that  there  was  a  negligent  omission  of  some  duty;  the  de- 
fendant will  then  be  notified  with  what  he  is  charged.5  The 
mere  allegation  that  defendant  allowed  its  employees  to  neglect 
their  duties,  without  alleging  how  or  wherein,  is  not  sufficient.6 
Care  must  be  taken  that  the  charge  is  sufficiently  specific  to  ad- 
vise the  defendant  of  what  he  is  called  upon  to  meet.7  And  if 
the  petition  sets  out  a  particular  act  of  negligence,  no  other  can 
be  proved.s  For  even  if  general  allegations  of  negligence  are 
used  in  connection  with  a  statement  of  specific  acts,  as  explana- 
tory of  the  specific  statement,  they  will  not  entitle  the  plaintiff 
to  recover  on  grounds  other  than  those  specifically  stated.9   Thus, 

1  Hurst  v.  Ash  Grove,  96  Mo.  168.  445:  Jacquin  v.  Grand  Ave.  Cable  Co., 

'^  Arnold  v.  St.  Louis,  152  Mo.  173.  57  App.  320,  in  which  last  case  the 

The  reader  should  also  consult  §  421  authorities  are  cited. 

et  -seq.    For  actions  against  a  munici-  6  Moss  v.  Pacific  Railroad,  49  Mo.  167. 

pality  for  injury  to  property,  see  §  477,  7  Wills  v.  Cape  Girardeau  Southwest- 

post  ern  R.  Co.,  44  App.  51. 

I  McPeak  v.  Mo.  Pac.  R.  Co.,  128  Mo.  8  Schneider  v.  Mo.  Pac.  R.  Co.,  75  Mo. 

617.  295;  Ravenscraft  v.  Mo.  Pac.  R.  Co.,  27 

*  Leduke  v.  St.  Louis  &  I.  M.  R.  Co.,  App.  617. 

4  App.  485;  Murdockv.  Brown,  10  App.  !,Waldhier  v.  Hannibal  &  St.  J.  R. 

549.  Co.,  71  Mo.  514. 
s  Gurley  v.  Mo.  Pac.  R.  Co.,  93  Mo. 


§§  422-425.]        FOREGOING  KULES  APPLIED.  227 

in  an  action  against  a  railroad  company,  if  the  negligence  con- 
sisted in  having  a  defective  sand-box  on  the  engine,  and  in  keep- 
ing a  defective  frog  in  the  track,  the  petition  should  not  charge 
negligence  in  running  the  cars.1  The  petition  is  sufficient  if  its 
averments  of  specific  acts  done  by  defendant  are  followed  by  a 
general  statement  of  injuries  resulting  to  the  plaintiff  from  such 
acts.2 

§  422.  While  a  general  charge  of  negligence  is  improper  in 
pleading,  and  if  timely  objection  is  made  to  it  the  pleading  will 
be  held  bad  on  that  account,  yet  if  it  is  not  objected  to  at  the 
proper  time  and  before  trial,  it  is  good  as  a  basis  of  proof.3  Gen- 
erality of  averment  in  an  action  of  negligence  is  not  a  fatal  ob- 
jection to  the  petition  after  answer.4  Where  the  petition  is  not 
attacked  before  the  trial,  and  especially  where  it  is  first  attacked 
after  verdict,  a  general  statement  as  to  negligence  will  ordina- 
rily be  held  to  be  sufficient.5 

§  423.  Same  —  Yarious  negligent  acts  may  foe  set  forth. — 
Since  negligence  in  fact  may  consist  of  any  number  of  negligent 
acts  preceding  the  injury,  and  leading  up  to  it  and  contributing 
to  it,  in  stating  his  cause  of  action  plaintiff  is  not  obliged  to  se- 
lect one  of  these  acts  and  rely  upon  it.6  And  plaintiff  may 
allege  different  forms  of  negligence  on  the  part  of  defendant  as 
the  cause  of  the  injury,  so  long  as  there  is  no  inconsistency  be- 
tween the  averments;  and  inconsistency  in  this  connection  means 
such  repugnance  that  the  proof  of  one  of  the  specific  acts  neces- 
sarily disproves  the  others.7 

§  424.  The  plaintiff  will  not  be  driven  out  of  court  simply  be- 
cause his  petition  alleges  more  than  he  has  proved,  if  the  un- 
proven  allegations  are  not  necessary  to  authorize  a  recovery.8 

§  425.  Same  —  Showing  connection  between  the  negligence 
and  the  injury. —  Where  the  petition  sets  out  with  particularity 
a  city  ordinance  limiting  the  speed  at  which  trains  may  be  run 
within  the  corporate  limits,  and  providing  that  a  bell  shall  be 
continually  rung  while  running  within  such  limits,  but  the  peti- 

i  Edens  v.  Hannibal  &  St.  J.  R.  Co.,  5  Foster  v.  Mo.  Pac.  R.  Co.,  115  Mo. 

72  Mo.  212.  165;  Benham  v.  Taylor,  66  App.  308. 

2  Hudson  v.  Wabash  &  W.  R  Co.,  32  <s  Hill  v.  Mo.  Pac.  R.  Co.,  49  App.  520. 

App.  667.  7  Seiter  v.  Bischoff,  63  App.  157;  Ho- 

»  Conrad  v.  De  Montcourt,  138  Mo.  gan  v.  Citizens'  R.  Co.,  150  Mo.  36. 

311.  8  Gannon  v.  Laclede  Gas  Light  Co., 

4  Foster  v.  Mo.  Pac.  R.  Co.,  115  Mo.  145  Mo.  502. 
165. 


228  TIIE    PETITION.  [§  426. 

tion  contains  no  averment  connecting  such  matters  with  the  in- 
jury complained  of,  it  is  demurrable.1  In  an  action  by  a  parent 
for  the  death  of  his  minor  son,  alleged  to  have  been  caused  by 
defendant's  negligence  in  allowing  an  elevator  hatchway  to  re- 
main in  a  dangerous  condition,  so  that  the  son  fell  through  it, 
the  petition,  after  setting  forth  in  general  terms  the  acts  and 
omissions  constituting  defendant's  negligence,  proceeded  to  aver 
that,  in  consequence  of  the  aforesaid  wrongful  acts,  neglect  and 
default  of  defendant,  and  without  fault  on  his  part,  the  said  son 
fell  into  and  through  the  hatchway.  It  was  held  that  the  negli- 
gence was  with  sufficient  definiteness  stated  to  be  the  proximate 
cause  of  the  injury.2  Where  the  injuries  were  sustained  by  plaint- 
iff while  employed  by  defendant  as  a  section  man,  the  averment 
of  the  petition  was  as  follows:  "That  while,  as  one  of  several 
section  men,  engaged  in  unloading  a  train  of  cars,  the  division 
roadmaster,  before  the  train  was  unloaded,  negligently  gave  an 
order  to  him  to  board  the  train,  and  that,  as  he  was  attempting 
obedience  to  the  order,  the  roadmaster  negligently  permitted  a 
railroad  tie  to  be  unloaded  and  thrown  from  the  car,  which 
struck  the  plaintiff  with  great  force  and  seriously  injured  him." 
It  was  held  that  this  was  a  sufficient  allegation  of  the  causal  con- 
nection between  the  negligence  of  defendant  and  the  injury  to 
plaintiff.3 

§  426.  Same  —  Violation  of  ordinance. —  In  an  action  against 
an  electric  street  railway  company,  where  the  charge  of  negli- 
gence is  based  on  the  violation  of  an  ordinance  which  requires 
the  motorman  to  keep  a  vigilant  watch  for  all  vehicles  or  pedes- 
trians on  the  track  or  moving  toward  it,  and  upon  the  first  ap- 
pearance of  danger  to  such  person  or  vehicle  to  stop  the  car  in 
the  shortest  time  and  space  possible,  it  is  not  sufficient  to  set  out 
such  ordinance,  but  the  petition  must  expressly  allege  that  the 
defendant  railway  company,  in  consideration  of  its  franchise,  ac- 
cepted said  ordinance  and  undertook  and  agreed  to  obey  its  pro- 
visions. The  duty  to  exercise  the  care  required  by  the  ordinance 
did  not  exist  at  common  law,  and  the  city  could  not  bind  the 
company  to  exercise  such  care  except  upon  its  agreement.  But 
its  assent  to  the  ordinance  would  create  a  contractual  liability 
on  its  part,  and  its  agreement  constitutes  an  essential  averment 

>  Lynch  v.  St  Joseph  &  Iowa  R.  Co.,  3  Foster  v.  Mo.  Pac  R.  Co.,  115  Mo. 
Ill  Mo.  601.  165. 

2  Schultz  v.  Moon,  33  App.  329. 


§§  427,  428.]  FOREGOING   RULES   APPLIED.  229 

in  the  petition.1  Where  the  petition  contains  merely  an  aver- 
ment that  the  defendant,  a  street  railway  company,  failed  to  use 
ordinary  care  in  providing  its  grip  car  with  a  fender  to  prevent 
its  running  over  children  it  had  run  down  and  upon,  it  fails  to 
state  a  cause  of  action  for  negligence.  There  must  be  an  aver- 
ment that  some  statute  or  ordinance  makes  it  the  duty  of  the 
company  to  place  fenders  on  its  cars.2 

§  427.  Negligence  —  Further  illustrations. —  A  wife,  suing 
for  damages  for  the  wrongful  killing  of  her  husband,  alleged 
that  at  the  time  the  accident  occurred  defendant  was  operating 
the  cars  which  did  the  injury,  and  that  deceased  in  the  exercise 
of  proper  care  and  caution  was  crossing  the  railway  track,  when 
defendant  by  its  agents  and  servants  negligently,  carelessly  and 
wrongfully  ran  its  cars  against  the  wagon  of  the  deceased,  over- 
turned the  same  and  killed  him;  it  was  held  that  the  petition 
was  good  as  against  the  objection  that  it  did  not  specify  the 
particular  act  of  negligence  which  caused  the  injury.3  And  a 
petition  was  held  to  be  sufficient  which  alleged  that  defendant, 
by  its  servants,  while  running  and  operating  a  locomotive  and 
train  of  cars  over  its  road,  did  so  carelessly,  negligently,  reck- 
lessly, heedlessly  and  unskilfully,  run,  manage  and  conduct  the 
same,  that  they  ran  against,  struck,  and  fatally  wounded  the  de- 
ceased.4 

§  428.  In  an  action  for  damages  suffered  by  an  employee, 
which  were  alleged  to  have  been  caused  by  a  defective  coupling, 
the  petition  alleged  that  there  was  in  the  train  a  freight  car 
which  was  defective  and  unsafe,  and  very  dangerous  to  brake- 
men  in  coupling  and  uncoupling,  in  this,  "  that  the  lip  on  the 
drawbar  at  one  end  of  said  car  was  broken  off,  and  the  plate  on 
the  deadwood  on  the  bumper  at  the  same  end  of  said  car  was 
broken  and  worn  out,  and  said  car  was  so  that  there  was  noth- 
ing to  prevent  the  drawbar  from  going  back  under  said  car  and 
thereby  making  it  very  dangerous  a.nd  unsafe  for  brakemen  in 
coupling  and  uncoupling  said  car."  It  was  held  that  these  alle- 
gations were  broad  enough  to  cover  any  defect  in  the  coupling 
appliance  which  rendered  it  insufficient  to  keep  the  drawbar 
from  passing  under  the  car.5 

1  Sanders  v.  Southern  Elec.  R.  Co.,  what  similar  case,  Sullivan  v.  Mo.  Pac. 

147  Mo.  411.  R  Co.,  97  Mo.  113. 

2Hogan  v.  Citizens' R  Co.,  150  Mo.  36.  <Shaw  v.  Mo.  Pac.  R.  Co.,  104  Mo. 

3  Pope  v.  Kansas  City  Cable  R  Co.,  648. 

99  Mo.  400;  the  decision  being  in  line  5  Bender  v.  St.  Louis  &  S.  F.  R.  Co., 

with  an  earlier  decision  in  a  some-  137  Mo.  240. 


THE    PETITION.  [§§  429-433. 

§  429.  In  an  action  for  personal  injuries  received  from  falling 
from  a  freight  car,  the  allegation  was  that  the  hand-hold  on  the 
car  was  not  safe  and  sufficient,  and  that,  by  reason  of  said  defect- 
iveness and  insufficiency,  it  broke.  This  was  held  to  amount  to 
an  averment  that  there  was  a  weakness  in  the  fastenings  of  the 
hand-hold  in  consequence  of  which  it  broke,  and  was  a  suffi- 
ciently specific  statement  of  the  negligence  intended  to  be 
charged.1 

§  430.  In  an  action  based  upon  the  common-law  liability  of  a 
carrier  for  failing  to  carry  an  animal  safely,  the  petition  need 
only  allege  general  negligence;  but  if  plaintiff  specifies  the 
acts  of  negligence,  he  will  be  confined  in  his  proof  to  those  acts.2 
AVhere  the  cause  of  action  is  based  upon  negligence  on  the  part 
of  the  agents  of  defendant  in  increasing  the  speed  of  a  moving 
car  while  a  passenger  was  in  the  act  of  stepping  aboard,  it  is  es- 
sential that  the  petition  should  allege  the  knowledge  of  defend- 
ant's agents,  or  an  opportunity  by  ordinary  care  to  know,  that 
plaintiff  was  in  the  act  of  mounting  the  car.3 

§  431.  In  an  action  against  a  physician  for  malpractice,  the 
petition  charged  that  defendant  so  negligently,  carelessly  and 
unskilfully  treated  and  managed  the  injury  that  the  fractured 
bones  were  not  placed  and  caused  to  remain  in  proper  positions. 
This  was  followed  by  the  additional  allegation  that  "  said  injury 
was  not  properly  and  skilfully  treated  and  managed  by  the  de- 
fendant." But  it  was  held  that  the  last  clause  added  nothing 
to  that  which  preceded  it,  nor  did  it  render  the  whole  charge 
more  comprehensive  than  it  would  have  been  if  the  clause  had 
not  been  added.4 

§  432.  Where  the  injury  which  formed  the  basis  of  the  action 
was  caused  by  a  defect  in  a  grating  in  a  sidewalk,  which  grating 
was  maintained  by  defendant  in  front  of  his  property,  it  is  not 
necessary  that  plaintiff  should  allege  that  defendant  constructed 
the  grating  in  the  first  instance,  nor  that  it  was  an  unlawful  ob- 
struction at  the  time  it  was  constructed.  Neither  is  it  necessary 
to  allege  that  such  grating  wras  kept  and  maintained  in  the  side- 
walk as  a  benefit  or  convenience  to  the  defendant.5 

§  433.  "Where  the  action  is  for  injuries  received  in  an  elevator 
shaft  of  a  hotel,  and  the  petition  avers  that  the  elevator  was 

i  Condon  v.  Mo.  Pac.  R.  Co.,  78  Mo.  3  Worthington  v.  Lindell  R.  Co.,  72 

567.  App.  162. 

2  Lachner  v.  Adams  Express  Co.,  72  4  Carpenter  v.  McDavitt,  53  App.  393. 

App.  13.  5  Stevens  v.  Walpole,  76  App.  213. 


§§  434,  435.]  FOREGOING   KULES   APPLIED.  231 

moved  in  obedience  to  the  order  of  the  general  manager  of  the 
hotel,  and  that  plaintiff  was  injured  thereby,  but  it  does  not  al- 
lege that  the  manager  was  guilty  of  negligence  in  giving  the 
order,  plaintiff  cannot  recover,  even  though  the  order  was  in 
fact  negligent.1 

§  434.  Where  the  petition  alleged  that  plaintiff  was  injured 
by  the  negligence  of  defendant's  servants  in  propelling  a  car, 
which  he  was  engaged  in  unloading,  with  great  velocity  against 
another  car,  thereby  throwing  down  upon  him  a  part  of  the 
freight  in  said  car,  it  is  good.2  In  an  action  against  a  railroad 
company  for  the  death  of  a  child,  plaintiff  alleged  that  the  com- 
pany permitted  ice,  while  it  was  being  unloaded  from  its  cars, 
to  fall  under  and  around  the  same,  thereby  attracting  children, 
and  while  plaintiff's  child  was  so  attracted,  and  was  under  the 
cars,  the  company  carelessly  and  negligently  bumped  a  long 
train  of  cars  against  those  loaded  with  the  ice,  whereby  the  child 
was  killed.  It  was  held  that  the  petition  was  fatally  defective 
for  the  following  reasons:  First,  that  it  failed  to  charge  that  the 
company  was  itself  engaged  in  the  unloading  of  the  cars ;  second, 
that  it  did  not  allege  that  the  cars  were  being  unloaded  in  a 
negligent  manner;  and,  third,  in  not  stating  how  long  the  child 
had  been  under  the  car  before  it  was  moved.3 

§  435.  Actions  under  the  damage  act.— In  actions  brought 
under  sections  2864-2S66,4  it  is  not  necessary  to  state  that  the 
action  is  brought  under  the  statute,  nor  is  it  necessary  that  any 
reference  should  in  terms  be  made  to  the  statute.5  The  petition 
is  sufficient,  if  in  general  terms  it  charges  that,  by  reason  of  de- 
fendant's negligence  and  unskilf ulness  in  running  and  managing 
its  car  or  other  vehicle,  the  defendant  was  run  against  and 
killed.6  But  the  plaintiff  or  plaintiffs  must,  both  by  the  pleading 
and  the  proof,  bring  themselves  within  the  terms  of  the  act.7 
Thus,  since  the  right  of  the  parents  to  maintain  the  action  under 
section  2864 8  depends  upon  the  fact  that  the  minor  child  left 

i  McCarty  v.  Rood  Hotel  Co.,  144  Ma  6  Kennayde  v.  Pacific  R.  Co.,  45  Mo. 

397.  255;  White  v.  Maxcy,  64  Mo.  552. 

2  Clay  v.  Chicago  &  Alton  R,  Co.,  17  6  Le  May  v.  Mo.  Pac.  R.  Co.,  105  Mo. 
App.  629.  361. 

3  Rushenberg  v.  St.  Louis,  I.  M.  &  S.  7  Barker  v.  Han.  &  St.  J.  R.  Co.,  91 
R.  Co..  109  Mo.  112.  Mo.  86;  Mcintosh  v.  Mo.  Pac.  R.  Co., 

Illustrations  of  petitions  inactions  108  Mo.  181;  Dulaney  v.  Mo.  Pac.  R. 

based  on  negligence  will  also  be  found  Co.,  21  App.  597. 

in  §S  408-410,  420  and  452  et  seq.  8  Rev.  Stat.  1899. 

« Rev.  Stat.  1899. 


232  tiie  petition.  [§§  43G,  437. 

neither  widow  nor  minor  children  surviving,  unless  this  fact  is  al- 
Leged,  either  directly  or  inferentially,  the  petition  will  be  fatally 
defective.1  If  the  action  is  by  the  mother,  the  petition  need 
not  in  express  terms  aver  the  death  of  the  father,  where  the 
plain  import  of  the  language  used  is  that  the  father  was  dead; 
and  this  is  sufficiently  alleged  if  it  is  stated  that  plaintiff  is  a 
widow.2  If  the  action  is  for  injuries  to  a  minor  son  causing  his 
death,  the  petition  must  allege  that  the  minor  was  unmarried.3 
But  if  it  states  that  the  minor  was  an  infant  under  two  years  of 
age,  or  that  he  was  six  years  of  age  at  the  time  of  his  death,  the 
petition  is  not  defective  because  it  does  not  in  terms  state  that  he 
was  unmarried,  that  fact  being  necessarily  inferred  from  the 
averments  as  to  his  age.4  If  the  action  is  brought  by  a  mother 
for  the  death  of  her  minor  son,  it  is  not  necessary  to  allege  a 
loss  of  services.5  In  no  case  is  it  necessary  that  the  petition 
should  set  out  the  nature  and  extent  of  the  injuries  which  caused 
the  death.6 

§  436.  AYhere  the  action  is  brought  by  an  infant  child  of  the 
deceased,  the  petition  must  show  that  plaintiff  is  an  infant,  and 
that  he  sues  by  a  next  friend  or  guardian.7  An  action  for  death 
was  brought  in  the  name  of  the  guardian  of  the  minor  children 
of  the  deceased.  Their  names  were  set  out  in  the  caption  of  the 
petition,  but  all  the  allegations  of  the  petition  were  in  the  sin- 
gular number,  and  the  petition  concluded  with  the  statement  that 
"he  is  damaged  and  asks  judgment,  etc."  But  the  petition  re- 
ferred to  the  damage  act,  under  the  provisions  of  which,  and  the 
circumstances  detailed  in  the  petition,  the  minors  alone,  by  their 
guardian  or  next  friend,  could  recover.  It  was  held  that,  while 
the  petition  was  inartificial,  yet  it  did  not  utterly  fail  to  state  a 
cause  of  action,  and  there  was  at  least  sufficient  in  it  to  support 
an  amendment.8 

§  437.  Pleading  contributory  negligence. —  It  is  not  necessary 
to  aver  that  the  plaintiff  or  that  the  deceased  was  at  the  time  of 

1  Sparks  v.  Kansas  City,  S.  &  M.  R.  s  Hennessy  v.  Bavarian  Brewing  Co., 

Co.,  31  App.  Ill;  Mcintosh  v.  Mo.  Pac.  145  Mo.  104.     The  cases  of  Matthews 

R.  Co.,  103  Mo.  131.  v.  Mo.  Pac.  R  Co.,  26  App.  75,  and  Hen- 

2Goins  v.  Chicago,  R  L  &  Pac.  R  nessy  v.  Bavarian   Brewing  Co.,   63 

Co.,  47  App.  173.  App.  Ill,  are  overruled. 

.  3  Dulaney  v.  Mo.  Pac.  R  Co.,  21  App.  6  Mitchell  v.  Clinton,  99  Mo.  153. 

597.  7  Higgins  v.  Hannibal  &  St.  J.  R  Co., 

4  Czezewzka  v.  Benton-Bell  efontaine  36  Mo.  418. 

R  Co.,  121  Ma  201;  Baird  v.  Citizens'  8  Weber  v.  Hannibal,  83  Mo.  262. 
Ry.  Co.,  146  Mo.  265. 


§  438.]  FOEEGOING   RULES   APPLIED.  233 

the  injury  in  the  exercise  of  due  care  or  without  fault,  since  under 
the  practice  in  Missouri  contributory  negligence  is  a  substantive 
defense,  and  will  not  be  considered  unless  pleaded  by  the  defend- 
ant.1 Therefore  in  an  action  for  injuries  received  from  the  caving 
in  of  a  ditch  upon  plaintiff,  the  petition  is  not  defective  because 
it  does  not  allege  that  the  plaintiff  was  ignorant  of  the  dangerous 
condition  of  the  ditch,  since  such  averment  relates  only  to  the 
defense  of  contributory  negligence,  and  this  must  be  set  up  by 
the  defendant  as  an  affirmative  defense.2 

§  438.  Actions  for  nuisance. —  It  is  not  necessary  to  detail  all 
the  particular  injuries  which  result  from  the  alleged  nuisance.3 
But  if  it  is  attempted  to  specify  the  particular  injuries  flowing 
from  a  nuisance,  all  that  plaintiff  intends  to  prove  must  be  spe- 
cifically alleged,  since  he  will  be  limited  in  his  proof  to  those 
set  out  in  his  petition.4  But  if  the  nuisance  is  a  public  one,  and 
plaintiff  seeks  to  recover  on  the  ground  that  he  has  suffered 
some  special  damage  over  and  above  that  suffered  by  the  com- 
munity in  general,  it  is  the  universal  rule  that  he  must  allege 
and  prove  such  special  damage.5  "Where  plaintiff  states  fully 
and  completely  every  substantial  fact  required  to  sustain  the 
charge  that  defendant  had  created  a  nuisance  on  plaintiff's  prop- 
erty, it  is  not  necessary  that  he  should  go  further  and  charge 
that  the  acts  were  wrongfully  or  unlawfully  done.  It  is  only 
necessary  to  allege  such  substantive  facts  as  the  law  says  are 
wrongful  and  unlawful.6  An  allegation  that  a  standpipe  has 
been  erected  by  a  city  near  to  plaintiff's  residence,  and  that 
water  escaping  from  said  standpipe  renders  the  ground  in  its 
vicinity  wet,  soggy  and  unhealthy,  is  so  vague  and  indefinite  as 
to  state  no  actionable  facts.7  Where  the  action  is  against  a  rail- 
road company  for  constructing  its  track  in  a  street,  for  which 
purpose  it  erected  high  embankments  in  the  street,  it  would 
seem  that  it  is  not  necessary  to  allege  that  the  erection  of  the 

1  Thompson  v.  North  Mo.  R  Co.,  51  petition  that  plaintiff  was  without 
Mo.  190;  Lloyd  v.  Hannibal  &  St  J.  R.  fault,  and  a  denial  of  this  allegation, 
Co.,  53  Mo.  509;  Petty  v.  Hannibal  &    see  §  565,  post. 

St.  J.  R.  Co.,  88  Mo.  306;  O'Conner  v.        spinney  v.  Berry,  61  Mo.  359. 

Mo.  Pac.  R.  Co.,  94  Mo.  150.  4  Pinney  v.  Berry,  61  Mo.  359;  Ivie 

2  Hall  v.  St.  Joseph  Water  Co.,  48    v.  McMunigal,  66  App.  437. 

App.  356.  8  Given  v.  Van  Studdiford,  86  Mo. 

Contributory  negligence   as   a   de-  149. 

fense  is  considered  in  ch.  XXVI,  §g  712-  B  Thomas  v.  Concordia  Cannery  Co., 

714.  68  App.  350. 

As  to  effect  of  an  allegation  in  the  "Whitfield  v.  Carrollton,  50  App.  98. 


234  THE  petition.  [§§439-441. 

embankments  was  unnecessary,  and  was  the  result  of  negligence 
in  constructing  the  road.1 

39.  Same  —  For  continuing  a  nuisance. —  The  law  is  that 
one  who  maintains  or  adopts  a  nuisance  already  existing  is  re- 
sponsible  for  the  damages  resulting  from  it  to  the  same  extent 
as  though  he  had  created  it.  Therefore,  where  an  action  is  brought 
against  a  property  owner  for  maintaining  a  defective  grating  in 
the  sidewalk  in  front  of  his  property,  it  is  not  necessary  for 
plaintiff  to  allege  that  the  grating  was  in  the  first  instance  con- 
structed by  the  defendant,  nor  that  it  was  an  unlawful  obstruc- 
tion at  the  time  it  was  constructed,  nor  that  it  was  kept  and 
maintained  in  the  sidewalk  as  a  benefit  or  convenience  to  the 
defendant.  He  is  liable  if  he  maintained  the  grating  in  the  high- 
way in  such  a  way  as  to  constitute  a  nuisance,  whether  he  was 
benefited  by  it  or  not.2  Where  the  action  is  based  upon  the  con- 
tinuance of  a  nuisance  by  one  who  did  not  originate  it,  the  peti- 
tion must  contain  an  averment  that  defendant  has  by  some 
positive  act  adopted  the  nuisance,  or  that  he  has  permitted  it  to 
remain  after  he  has  been  requested  to  abate  it.3 

§  440.  Actions  by  and  against  officers. —  In  an  action  against 
a  city  to  recover  the  fees  and  emoluments  of  office  of  which 
plaintiff  claims  he  has  been  wrongfully  deprived,  his  petition 
must  allege,  either  that  he  was  in  possession  of  the  office  and  was 
wrongfully  ousted  from  it,  or  that  he  claimed  the  fees,  and  that 
such  claim  has  been  judicially  determined  to  be  good.4 

§  441.  Actions  on  official  bonds. —  In  an  action  on  an  official 
bond  the  petition  is  sufficient  if  it  alleges  that  the  principal  did 
not  faithfully  account  for  all  money  coming  into  his  hands,  and 
that  the  balance  sued  for  was  due  by  the  defendants.5  An  alle- 
gation that  a  county  treasurer  has  received  money  which  he  neg- 
lects and  refuses  to  pay  to  the  county  insufficiently  assigns  a 
breach  of  his  bond,  unless  it  is  further  averred  that  warrants  for 
such  money  had  been  drawn  upon  him  by  order  of  the  county 
court.6  Where  the  action  is-  against  a  surety  on  a  collector's 
bond,  the  petition  must  allege  that  the  money  which  the  col- 
lector failed  to  pay  over  was  collected  during  his  term  of  office.7 
I3ut  it  is  not  necessary  to  state  for  what  years  the  collector  was 

1  Cross  v.  St.  Louis,  K.  C.  &  N.  E.        5  Bricker  v.  Stone,  47  App.  530. 
Co.,  77  Mo.  318.  »  State  to  use  v.  Thomas,  17  Mo.  503. 

2  Stevens  v.  Walpole,  70  App.  213.        See  post,  §§  444,  445. 
3Rychlicki  v.  St.  Louis,  115  Mo.  602.        7  State  v.  Grirnsley,  19  Mo.  171. 
<Hugh!ett  v.  Wellsville,  75  App.  341. 


§§  4-12,  443.]  FOKEGOING   KULES   APPLIED.  235 

elected  or  his  bond  was  given,  provided  it  is  distinctly  alleged 
that  while  he  was  collector  he  collected  the  money  in  his  official 
capacity,  and  that  he  failed  and  refused  to  account  for  it.1 

§442.  Same  —  On  bond  of  sheriff  or  constable.— In  an  ac- 
tion on  the  bond  of  a  sheriff  or  a  constable  for  failure  to  levy  an 
attachment  on  personal  property,  the  petition  must  contain  an 
allegation  that  the  attachment  plaintiff  prosecuted  his  suit  to 
final  judgment,  since  a  judgment  in  his  favor  in  the  attachment 
suit  is  a  prerequisite  to  his  right  to  maintain  an  action  on  the 
bond.2  Where  the  action  is  on  a  constable's  bond  for  failure  to 
advise  an  execution  defendant  of  his  exemption  rights,  the  alle- 
gation that  plaintiff  was  the  head  of  a  family,  and  as  such  enti- 
tled to  claim  the  property  levied  on  as  exempt,  is  an  essential 
one;3  but  it  is  sufficient  to  allege  that  defendant  was  the  head 
of  a  family,  without  setting  out  the  facts  which  would  constitute 
him  such.4  In  an  action  against  an  officer  for  failing  to  notify 
an  execution  debtor  of  his  exemption  rights,  it  was  alleged  that 
plaintiff  had  certain  money  in  the  bank  which  was  less  than  the 
amount  he  was  entitled  to  hold  as  exempt;  that  the  officer  gar- 
nished the  bank  and  failed  to  notify  plaintiff  of  such  garnishment 
and  of  his  exemption  rights ;  that  plaintiff  afterwards  notified 
the  defendant  officer  that  he  claimed  the  money  as  exempt,  and 
that  he  demanded  it  should  be  paid  to  him ;  and  that  said  de- 
mand was  refused.  The  petition  was  held  good,  it  not  being- 
necessary  to  allege  that  the  plaintiff  did  not  have  the  property 
mentioned  in  the  first  and  second  subdivisions  of  section  3159,5 
nor  was  it  necessary  to  aver  that  the  money  in  the  bank  was  all 
the  property  which  he  possessed,  nor  that  when  added  to  his 
other  property  it  would  not  have  exceeded  in  value  the  statutory 
exemption.6 

§  443.  Same  —  Executor  or  administrator. —  If  the  action  is 
on  an  executor's  bond  to  compel  payment  of  a  demand  allowed 
against  the  estate,  the  petition  must  contain  an  averment  that  an 
order  of  the  court  has  been  made  for  the  payment  of  the  demand, 
and  that  assets  have  come  to  the  hands  of  the  executor  which 
could  be  lawfully  so  applied;  an  order  of  the  probate  court  for 

1  Morgan  County  v.  Lutman,  03  Mo.  4  State  to  use  v.  Hussey,  7  App.  597; 

210.  Duncan  v.  Frank,  8  App.  280. 

-'Lesem  v.  Neal,  53  Mo.  412;  State  &Rev.  Stat.  1899. 

ex  rel.  v.  Finn,  98  Mo.  532;  Shanklin  v.  6  State  ex  rel.  v.  Brady,  53  App.  202; 

Francis,  59  App.  178.  Duncan  v.  Frank,  8  App.  286. 

3  State  to  use  v.  Bacon,  24  App.  403. 


236  THE    PETITION.  [§  444. 

the  payment  of  the  demand  is  a  condition  precedent  to  the  action 
on  the  bond.1  If  the  petition  shows  that  the  administrator  failed 
to  comply  with  an  order  of  payment  made  by  the  probate  court 
on  final  settlement,  it  states  a  good  cause  of  action,  though  there 
is  no  averment  attempting  to  show  whether  the  funds  were  act- 
ually lost  to  the  estate  before  or  after  the  execution  of  the  bond.2 
An  averment  that  the  administrator  did  not  turn  over,  and  has 
not  turned  over,  to  plaintiff  the  sum  of  $ — — ,  as  by  the  condi- 
tion of  his  said  bond,  and  the  order  of  said  probate  court  ns  afore- 
said, he  was  in  duty  bound  to  do,  though  often  requested  to  do 
so,  is  a  sufficient  assignment  of  a  breach  of  the  bond.3  In  an 
action  on  the  bond  of  an  administrator  based  upon  the  ground 
that  improper  allowances  were  made  to  him  on  his  final  settle- 
ment, it  is  not  sufficient  to  allege  that  he  illegally  procured  such 
allowances  to  be  made  in  his  favor;  there  must  be  an  allegation 
that  they  were  procured  by  fraud.4  Where  the  action  is  brought 
by  the  successor  in  office  of  the  administrator,  the  fact  of  defend- 
ant's appointment  as  administrator  must  be  alleged,  though  it 
may  be  alleged  in  general  terms.5  If  the  action  is  on  the  bond 
of  an  administrator  who  had  died  after  receiving  the  money,  it 
is  sufficient  to  allege  that  such  administrator  did  not  account  for 
and  deliver  said  money  according  to  law,  and  that  since  his  death 
his  legal  representatives  have  not  paid  the  same ;  it  need  not  bo 
further  alleged  that  the  deceased  administrator  had  an  adminis- 
trator or  executor.6  But  in  an  action  against  an  executor  of  an 
executor  upon  the  bond  of  the  latter,  it  is  necessary  to  allege  that 
neither  the  executor  in  his  life-time  nor  his  executor  since  have 
performed  the  act  required.7 

§444,  Same  —  County  collector  or  clerk, —  In  an  action 
brought  by  a  city  on  the  bond  of  a  tax  collector  for  a  failure  to 
enforce  the  payment  of  a  certain  tax,  the  petition  must  show 
that  the  proper  tax  book  or  legal  warrant  was  delivered  to  the 
collector.8  In  an  action  against  a  collector  for  a  wrongful  levy 
on  property  to  satisfy  a  tax-bill,  the  petition  must  allege  that  the 

1  State  to  use  v.  Modrell,  15  Mo.  421 ;        5  Dodson  v.  Scroggs,  47  Mo.  285. 
State  ex  rel.  v.  Stafford,  73  Mo.  658;        6  Finney  v.  State,  9  Mo.  624 

State  ex  reL  v.  Shelby,  75  Mo.  482.  7  State  to  use  v.  Petticrew,  19  Mo. 

2  State  ex  reL  v.  Creusbauer,  68  Mo.    373. 

254.  8City  of  Stanberry  v.  Jordan,  145 

3  State  to  use  v.  Bartlett,  68  Mo.  581.    Mo.  371. 

4  Jones  v.  Brinker,  20  Mo.  87;  Whit- 
telsey  v.  Dorsett,  23  Mo.  230. 


§§  445,  446.]  FOREGOING   EULES   APPLIED.  237 

assessment  is  void;  it  is  not  sufficient  to  set  forth  objections 
which  go  merely  to  the  manner  and  form  of  making  the  assess- 
ment, and  which  come  short  of  showing  a  total  want  of  power 
in  the  authorities  to  act.1 

§  445.  Where  a  county  clerk  makes  a  statement  to  the  county 
court  of  the  fees  received  by  him,  which  statement  is  correct, 
but  fails  to  pay  into  the  treasury  the  excess  of  fees  collected  by 
him  as  required  by  section  3265,*  a  petition  in  an  action  on 
his  bond  for  such  failure  must  contain  an  averment  that  the 
court  examined  his  settlement,  ascertained  the  amount  of  the 
excess  which  was  due  the  county,  and  ordered  such  excess  paid 
into  the  county  treasury.3  But  these  allegations  are  not  neces- 
sary where  it  is  alleged  that  the  clerk  was  guilty  of  fraud  and 
deceit  in  filing  statements  which  omitted  a  part  of  the  fees  re- 
ceived by  him.  In  that  case,  if  the  petition  alleges  that  the 
clerk  collected  fees  which  he  failed  to  report  to  the  county  court, 
it  states  a  causes  of  action,  since  under  such  circumstances  the 
court  is  not  required  to  make  the  order  as  a  condition  precedent 
to  an  action  on  the  bond.4  So,  too,  in  an  action  by  a  county 
against  the  sureties  of  a  defaulting  county  treasurer,  it  is  not 
necessary  that  the  petition  should  aver  that  an  order  was  made 
by  the  county  court  upon  the  treasurer  to  turn  over  all  balances 
to  his  successor;  nor,  if  the  treasurer's  term  has  expired,  is  it 
necessary  to  allege  that  a  warrant  was  drawn  on  the  treasurer 
for  the  balance  due.5  In  an  action  by  the  state  on  a  collector's 
bond  for  failure  to  pay  into  the  state  treasury  the  amount  of 
certain  taxes  collected  by  him  as  such,  it  being  alleged  that  the 
taxes  belonged  to  the  state  revenue  and  state  interest  fund,  it  is 
not  necessary  that  the  petition  should  go  further  and  negative 
the  presumption  that  the  collector  paid  the  amounts  collected 
into  the  county  treasury,  since  such  an  allegation  would  be  in- 
consistent with  the  theory  of  the  case.6 

§  446.  Suit  involving  partnership.— Where  partners  are  sued 
for  a  partnership  debt,  there  need  not  be  any  allegation  of  a  part- 
nership; the  allegation  that  defendants  are  indebted  is  sufficient. 

i  Mayor  v.  Opel,  49  Mo.  190.  430;  Hickory  County  v.  Fugate,  143 

2  Rev.  Stat.  1899.  Mo.  71. 

3  State  ex  rel.  v.  Dent,  121  Mo.  162;  6  State  ex  rel.  v.  Seibert,  148  Mo.  408. 
State  ex  rel.  v.  Henderson,  142  Mo.  598.  See  also  §  441,  ante. 

4  State  ex  rel.  v.  Henderson,  142  Mo.  For  petition  in  actions  on  ordinary 
598;  State  ex  reL  v.  Chick,  146  Mo.  645.  bonds,  see  ante,  §§  360-364. 

5  Clark  County  v.  Hayraan,  142  Mo. 


THE    PETITION.  [§  417. 

•  need  it  be  alleged  that  the  contract  was  made  by  one  partner 
for  the  benefit  of  the  firm.1  In  an  action  on  a  note  payable  to  a 
firm,  it  is  not  necessary  to  allege  that  the  note  was  made  to  the 
pavees  by  their  firm  name.2  If  a  bill  is  filed  for  an  account- 
ing between  the  partners,  it  must  either  state  or  pray  for  an  ac- 
count.3 

§  447.  Proceeding  to  recover  a  penalty. —  Where  it  is  sought 
to  recover  a  penalty  created  by  statute,  the  petition  must  state 
the  facts  necessary  to  bring  the  case  within  the  statute;  for  if  it 
states  only  such  facts  as  would  constitute  a  cause  of  action  for 
trespass  at  common  law,  and  refers  only  generally  in  the  prayer 
to  the  statute,  it  is  not  sufficient.4  Thus  where  the  action  is 
brought  under  section  4572 5  for  treble  damages  for  one  of  the 
trespasses  therein  specified,  if  the  petition  merely  alleges  that 
the  defendant  without  leave  entered  upon  the  premises  and  car- 
ried away  the  stone,  or  other  article,  mentioned  in  the  section, 
and  cIogs  not  allege  that  the  defendant  entered  upon  land  which 
was  not  his  own,  and  that  he  had  no  interest  or  right  in  the 
article  carried  away,  it  simply  states  an  action  at  common  law, 
and  the  petition  is  not  sufficient  to  support  a  judgment  for  treble 
damages.4  The  general  rule  applicable  to  the  construction  of  a 
penal  statute  is  that  no  cases  will  be  held  to  fall  within  it  which 
do  not  fall  both  within  the  reasonable  meaning  of  its  terms  and 
within  the  spirit  and  scope  of  the  enactment.  Therefore,  in  ac- 
tions on  penal  statutes  the  plaintiff's  statement  of  his  cause  of 
action  cannot  be  helped  out  by  intendment,  nor  can  a  defective 
or  imperfect  allegation  be  cured  by  verdict.  Every  fact  essen- 
tial to  a  recovery  must  be  affirmatively  pleaded.6  In  an  action 
to  recover  the  penalty  provided  by  section  1255 7  for  neglect  by 
a  telegraph  company  to  promptly  transmit  a  message  delivered 
to  it,  the  petition  must  allege  that  the  message  was  delivered  at 
the  company's  office,  and  that  plaintiff  paid  or  tendered  to  the 
company  the  usual  charge  for  its  transmission.  It  is  not  suffi- 
cient to  allege  that  the  message  was  delivered  to  the  agent  and 
operator  of  the  company  in  the  city  where  its  office  is  located; 
nor  is  it  sufficient  to  aver  that  the  plaintiff  paid  the  agent  of  the 
company  the  sum  of  twenty-five  cents,  without  an  additional 

1  Gates  v.  Watson,  54  Mo.  585.  6  Wood  v.  Western  Union  Telegraph 

2  Lee  v.  Hunt,  6  Mo.  163.  Co.,  59  App.  236;  State  to  use  v.  Wa- 

3  Pope  v.  Salsman,  35  Mo.  362.  bash,  St.  L.  &  P.  R.  Co.,  83  Mo.  144 

*  Pitt  v.  Daniel,  82  App.  168.  »  Rev.  Stat.  1899. 
5  Rev.  Stat.  1899. 


§§  448-450.]  FOREGOING   KULES   APPLIED.  239 

averment  that  such  sum  was  the  usual  charge  for  such  messages.1 
So,  too,  where  the  action  is  to  recover  the  penalty  for  a  failure  to 
erect  a  passenger  waiting-room  at  a  railroad  crossing,  the  peti- 
tion is  fatally  defective  if  it  fails  to  allege  that  both  the  inter- 
secting railroad  companies  were  carriers  of  passengers.2 

§  448,  Same  —  Penalty  stipulated  for  in  contract. —  Where 
a  certain  sum  is  named  in  an  agreement  as  a  penalty  for  plaint- 
iff's breach,  defendant  in  claiming  the  penalty  must  assign  spe- 
cific breaches  of  the  agreement,  so  as  to  advise  the  other  party 
of  the  nature  of  his  demand.  A  general  statement  that  defend- 
ant totally  disregarded  all,  and  did  not  fulfill  any,  of  the  cove- 
nants and  stipulations  by  him  to  be  kept  and  performed  is 
altogether  too  general.3 

§  449.  Action  between  principal  and  agent. —  Where  a  real- 
estate  agent  sues  his  principal  for  commissions  on  account  of  the 
sale  of  realty  for  the  principal,  and  the  petition  alleges  that  he 
had  procured  a  purchaser  ready  and  able  to  buy  the  property  on 
the  terms  prescribed  by  the  principal,  but  that  the  records  showed 
an  unsatisfied  deed  of  trust  on  the  property,  and  that  the  princi- 
pal had  failed  to  have  it  released  or  canceled,  by  reason  of  which 
fact  the  sale  fell  through,  this  is  sufficient;  it  is  not  necessary 
for  the  plaintiff  to  allege  either  that  the  deed  of  trust  was  a  lien 
on  the  property,  or  that  defendant  had  refused  to  make  the  sale.4 

§  450.  Actions  between  sureties. —  Where  a  surety  brings  an 
action  for  contribution  the  petition  must  contain  an  averment 
directly  charging  that  defendant  signed  as  co-surety  with  him- 
self.5 

-  Wood  v.  Western  Union  Telegraph  the  sale,  which  the  owner  may  en- 
Co.,  59  App.  236.  force  by  law  if  necessary,  or  he  must 

2  State  to  use  v.  Wabash,  St.  L.  &  P.  produce  such  purchaser  to  the  owner 
R.  Co.,  83  Mo.  144.  See  also  post,  %  457.  ready  and  able  to  complete  such  a 

3  Whitehall  v.  Shickle,  43  Mo.  537.  contract.     If  these  conditions  are  ful- 

4  Gerhart  v.  Peck,  42  App.  644.  filled  the  agent  may  recover  his  corn- 
There  are  many  decisions  of  our  courts  missions  even  though  the  sale  is 
announcing  the  principle  that  the  eventually  not  consummated.  The 
contract  of  a  real-estate  agent  for  the  leading  case  on  this  point  is  Hayden 
sale  of  land  is  complied  with  when  v.  Grillo,  35  App.  647.  (The  cases  are 
he  finds  a  purchaser  ready  and  able  collated  in  Pattison's  Digest,  vol.  2, 
to  make  the  purchase,  or  to  respond  pp.  1402-1407;  vol.  5,  p.  391.)  It  nec- 
in  damages  in  the  event  of  a  failure  essarily  follows  that  a  petition  to  re* 
to  perform  his  undertaking.  He  must,  cover  commissions  must  set  forth  suf- 
however,  procure  from  such  purchaser  ficient  facts  to  show  a  compliance 
and  tender  to  the  owner  a  valid  writ-  with  the  above  named  conditions, 
ten  contract  containing  the  terms  of  5Leeper  v.  Paschall,  70  App.  117. 


240  the  petition.  [§§  451-453. 

§  451.  Actions  on  public  securities. —  In  an  action  on  a  bond 
issued  by  a  county  the  petition  must  show  the  authority  for  its 
issuance.1  And  where  the  bond  was  issued  to  pay  a  subscription 
by  a  county  to  a  railroad  company,  every  essential  element  of 
the  power  given  to  the  county  to  make  such  subscription  must 
be  stated  in  the  petition.2  It  is  not  necessary,  however,  to  set 
forth  in  detail  a  compliance  with  the  contract  and  statute  under 
which  the  issue  was  made;  and  where  the  act  authorizing  the 
bonds  to  be  issued  contains  a  limitation  as  to  the  total  amount 
to  be  issued,  if  the  action  is  for  bonds  aggregating  in  amount 
less  than  the  limitation,  the  petition  need  not  contain  an  allega- 
tion that  there  was  not  an  overissue  of  the  bonds.3  In  any  event 
it  would  be  sufficient  to  aver  that  the  bonds  were  duly  issued.3 

§452.  Actions  against  railroad  companies. —  Where  in  an 
action  against  a  railroad  company  based  upon  personal  injuries 
the  petition  states  a  case  of  negligence  for  which  defendant  would 
have  been  liable,  whether  plaintiff  was  a  trespasser  on  the  rail- 
road property  or  an  employee  of  the  company,  it  is  not  defective 
because  it  fails  to  state  what  the  relation  was  between  plaintiff 
and  the  defendant,  whether  he  was  an  employee  or  a  trespasser, 
or  in  what  capacity  he  was  present  on  the  property.4 

§  453.  Same  —  Failure  to  comply  with  statute  or  ordinance. 
In  an  action  against  a  railroad  company  for  injuries  occasioned 
by  its  failing  to  ring  the  bell  or  sound  the  whistle  at  a  public 
crossing,5  the  fact  of  such  failure,  and  some  reference  to  the 
statute,  must  be  set  out  in  the  petition.6  If  the  plaintiff  seeks 
to  recover  for  a  failure  of  the  company  to  sound  the  whistle  or  to 
ring  the  bell  at  a  place  used  as  a  crossing,  but  which  was  not  a 
public  crossing,  his  petition  must  contain  appropriate  averments 
that  it  was  negligence  on  the  part  of  the  company  not  to  give 
such  signals  at  such  a  place.7  Where  there  are  two  counts  to 
the  petition,  and  one  alleges  a  failure  to  sound  the  whistle  and 
the  other  a  failure  to  ring  the  bell,  they  are  both  fatally  defect- 
ive, since  in  order  to  recover  it  must  be  alleged  and  proved  that 

1  Donaldson  v.  Butler  County,  98  Mo.  upon  the  negligence  of  a  railroad 
163;  Catron  v.  Lafayette  County,  106  company,  see  also  ante,  §§  367  and  421- 
Mo.  659.  436. 

2  Weil  v.  Greene  County,  69  Mo.  281.  &  Rev.  Stat.  1899,  sec.  1102. 

3  Catron  v.  Lafayette  County,  106  6  Meyer  v.  Atlantic  &  Pacific  R.  Co., 
Mo.  659.  64  Mo.  542. 

«Reardon  v.  Mo.  Pac.  R,  Co.,  114  Mo.  7  Gurley  v.  Mo.  Pac.  R.  Co.,  104  Mo. 
384.  211. 

As  to  requisites  of  a  petition  based 


§§  45:1-456.]  FOKEGOING   RULES    APPLIED.  24:1 

there  was  a  failure  both  to  sound  the  whistle  and  to  ring  the 
bell.1 

§45-1.  Same  —  Failing  to  fence. —  A  petition  under  section 
1103 2  for  double  damages  must  allege  that  the  injury  for  which 
the  damages  are  claimed  was  caused  by  a  failure  of  the  company 
to  erect  and  maintain  fences.3  It  is  not  necessary  that  the  peti- 
tion should  contain  the  words  wrongfully,  negligently,  carelessly, 
or  any  such  words.4  The  petition  need  not  negative  the  fact  that 
the  place  at  which  the  animal  entered  upon  the  track  was  within 
the  limits  of  an  incorporated  town  or  city.5  But  a  statement 
filed  before  a  justice  of  the  peace  must  negative  such  fact.6 

§455.  Same  —  Failure  to  maintain  ditches. —  In  an  action 
against  a  railroad  company  for  injury  to  plaintiff's  crops  based 
upon  section  1110,7  which  provides  that  the  company  shall  under 
certain  circumstances  construct  and  maintain  suitable  ditches 
and  drains,  it  is  essential,  in  order  to  make  out  a  prima  facie  case 
under  the  statute,  to  aver,  first,  that  the  construction  of  the  road- 
bed obstructed  the  natural  flow  of  the  surface  water ;  second,  that 
there  were  ditches  or  drains  or  natural  water-courses  into  which 
such  obstructed  surface  water  could  have  been  conveyed  by  lat- 
eral ditches  constructed  along  the  sides  of  the  road-bed ;  third, 
that  the  appellant  failed  to  construct  such  ditches,  by  reason  of 
which  plaintiff's  lands  were  overflowed  by  the  obstructed  surface 
water,  and  damages  ensued.8  If  the  petition  attempts  to  set  out 
a  cause  of  action  against  the  company  under  the  statute  but  fails 
to  do  so,  it  is  nevertheless  good  if  it  sets  out  a  cause  of  action  at 
common  law.9 

§  456.  Same —  For  setting  fires. —  In  an  action  for  damage  to 
plaintiff's  property  arising  from  fire  set  by  a  locomotive  of  de- 
fendant, the  petition  stated  that,  while  defendant  was  propelling 
along  and  over  its  railroad  a  locomotive  engine,  where  the  right 
of  way  of  the  railroad  extended  along,  through  and  adjoining  a 

i  Terry  v.  St.  Louis  &  S.  F.  R.  Co.,  Co.,  73  Mo.  619;  Schulte  v.  St.  Louis,  L 

89  Mo.  586.  M.  &  S.  R.  Co.,  76  Mo.  324. 

2  Rev.  Stat  1899.  "  Rev.  Stat.  1899. 

3  Luckie  v.  Chicago  &  Alton  R.  Co.,  8  De  Lapp  v.  Kansas  City,  P.  &  G.  R. 
67  Mo.  245.  Co.,  69  App.  572;  Graves  v.  Kansas 

4Mumpower  v.  Hannibal  &  St.  J.  R.  City,  P.  &  G.  R.  Co.,  69  App.  574.   And 

Co.,  59  Mo.  245.  a  prior  decision  of  the  supreme  court 

5  Meyers  v.  Union  Trust  Co.,  82  Mo.  is  to  the  same  effect.  Field  v.  Chicago, 
237.  R.  I.  &  Pac.  R.  Co.,  76  Mo.  614 

6  Rowland  v.  St.  Louis,  L  M.  &  S.  R.        '■>  Garner  v.  Hannibal  &  St.  J.  R.  Co., 


34  Mo.  235. 


Mo.  Code  Pl.—  16 


•2\2  THE  PETITION.  [§§  457,  458. 

farm  owned  and  cultivated  by  plaintiff,  defendant  so  carelessly 
and  negligently  ran  and  managed  the  locomotive  that  sparks  of 
fire  were  permitted  to  escape  from  it  on  to  plaintiff's  farm  and 
on  to  defendant's  right  of  way,  where  defendant  had  carelessly 
and  negligently  permitted  dry  grass,  weeds  and  other  combus- 
tible matter  to  accumulate,  which  was  set  fire  to,  and  the  fire 
communicated  to  property  belonging  to  plaintiff  on  his  said  farm. 
It  was  held  that  the  negligence  was  charged  with  sufficient  pre- 
cision, and  that  the  allegations  showed  clearly  the  connection 
between  the  negligence  and  the  injury  sustained  by  plaintiff.1 

§457,  Same  —  To  recover  penalties. —  Where  an  action  is 
brought  against  a  railroad  company  to  recover  the  penalty  for 
illegal  charges  on  freight,  the  petition  is  sufficient  if  it  charges 
that  plaintiff  made  a  shipment  of  two  carloads  over  defendant's 
road,  that  the  legal  rates  were  a  specified  sum,  and  that  the  de- 
fendant charged,  and  plaintiff  paid,  a  different  specified  sum, 
being  an  excess  of  $3.20  over  the  legal  rates.2  And  the  fact  that 
the  petition  alleges  the  maximum  rate  fixed  by  the  statute  to  be 
less  than  it  is  in  fact  will  not  vitiate  the  petition,  though  plaintiff 
would  only  be  entitled  to  recover  the  actual  excess  over  the  legal 
rate.3 

§  458.  Same  —  "Where  road  is  leased. —  Where  one  railroad 
company  has  leased  its  road  to  another,  and  an  action  is  brought 
against  the  lessor  company  under  section  1060,4  which  section 
provides  that  a  railroad  company  in  this  state  leasing  its  road  to 
a  company  of  another  state  shall  remain  liable  as  though  it  oper- 
ated the  road  itself,  the  petition  must  aver  the  fact  of  the  leas- 
ing.5 But  in  a  later  decision  by  the  same  court  it  is  said  that 
plaintiff  may  plead  the  fact  according  to  its  legal  effect,  and  may 
charge  that  the  negligent  act  was  committed  by  the  defendant 
corporation;  and  though  it  turns  out  on  the  proof  that  it  was  in 
fact  committed  by  defendant's  lessee,  this  will  not  affect  plaint- 
iff's right  to  recover.6 

1  Palmer  v.  Mo.  Pac.  R.  Co.,  76  Mo.  For  requisites  of  petition  in  action 

217.  to    recover    penalties    generally,  see 

That  the  lessor  may  be  held  where  §§  447,  448,  ante. 

the  lire  is  set  by  a  lessee,  see  p°st>  4  ^ev-  Stat.  1899. 

§  458,  n.  6,  this  page.  5  Main  v.  Hannibal  &  St  J.  R.  Co., 

*"  2Burkholder  v.  Union  Tr.  Co.,  82  18  App.  388. 

Mo.  572.  6  McCoy  v.  Kansas  City,  St.  J.  &  C. 

3  Reynolds  v.  Chicago  &  Alton  R.  B.  R.  Co.,  36  App.  445. 
Co.,  85  Mo.  90. 


§§  459-461.]       FOREGOING  KULES  APPLIED.  213 

§  459.  Same  —  Wrongful  appropriation  of  land. —  In  an  ac- 
tion to  recover  damages  for  the  wrongful  appropriation  by  a 
railroad  company  of  land  for  railroad  purposes,  the  petition  fails 
to  state  a  cause  of  action  unless  it  alleges  that  the  entry  or  the 
occupation  was  wrongful.1  But  there  need  be  no  charge  that 
the  acts  were  negligently  done,  even  though  the  ground  of  the 
action  is  the  taking  and  injuring  of  land  outside  of  the  right  of 
way.2 

§  460.  Action  of  replevin. —  It  is  said  in  an  early  decision  of 
the  St.  Louis  court  of  appeals  that  under  our  code  the  greatest 
laxity  is  permitted  in  the  allegations  of  the  petition  in  this  con- 
nection, and  that  some  most  material  facts  may  be  safely  omitted 
from  the  petition,  though  they  must  be  contained  in  the  affida- 
vit, which  is  not  traversed  by  the  answer.  That  the  property 
was  not  taken  under  legal  process  must  be  stated  in  the  affidavit, 
though  it  may  be  omitted  in  the  petition,  and  the  petition  need 
say  nothing  as  to  the  value  of  the  property  claimed.  The  com- 
mon-law rules  of  pleading  do  not  apply  in  this  form  of  action, 
and  technical  exactness  is  not  required.3  The  supreme  court,  too, 
holds  that  it  is  not  prepared  to  say  that  the  petition  must  neces- 
sarily allege  the  value  of  the  property  claimed.4  If  no  petition 
is  filed,  and  there  is  nothing  but  the  statutory  affidavit,  there  is 
no  suit  instituted,  and  the  proceedings  should  be  dismissed.5  For 
the  affidavit  is  no  part  of  the  petition,  and  cannot  be  resorted  to 
even  to  help  out  the  petition.6 

§  461.  In  proceedings  in  a  court  of  record  under  the  statute 
as  to  the  claim  and  delivery  of  personal  property,7  the  petition 
must  state  that  the  plaintiff  has  a  general  or  special  property  in 
the  goods  sued  for.  The  mere  allegation  of  his  right  to  the  pos- 
session of  them,  and  of  their  wrongful  caption  and  detention  by 
defendant,  will  not  suffice.8  And  if  the  petition  fails  to  comply 
with  this  requirement,  it  will  be  fatally  defective  even  after  ver- 
dict.9    Though  if  the  answer  sets  out  the  plaintiff's  interest  the 

1  Robertson  v.  Springfield  &  S.  R  6  Benedict  Mfg.  Co.  v.  Jones,  60  App. 

Co.,  18  App.  185.  219. 

2McCord  v.   Doniphan    Branch  R.  7  Rev.  Stat.  1899,  sees.  4463  et  seq. 

Co.,  21  App.  92.  8  Young  v.   Glascock,  79  Mo.   574; 

3Bosse  v.  Thomas,  3  App.  472,  478.  Deyerle  v.  Hunt,  50  App.  541;  Bene- 

♦Schaffer  v.  Faldwesch,  16  Mo.  337.  diet  Mfg.  Co.  v.  Jones,  60  App.  219; 

s  Oxley  Stave    Co.   v.  Whitson,  34  Dillard  v.  McClure,  64  App.  491. 

App.  624.  9  Benedict  Mfg.  Co.  v.  Jones,  60  App. 

219. 


244  THE  PETITION.  [§  462. 

defect  will  be  cured.1  A  petition  which  states  that  plaintiff  is 
the  owner  of,  and  entitled  to  the  possession  of,  the  property  de- 
scribed in  it,  and  that  defendant  wrongfully  detains  such  prop- 
erty, is  sullicient.2  But  the  petition  must  aver  that  the  property 
was  unlawfully  detained,  otherwise  it  is  fatally  defective.3  A 
petition  which  alleged  that  plaintiff  owned  and  was  entitled  to 
the  possession  of  a  saw-mill,  and  that  defendant,  as  sheriff  of  the 
county,  had  wrongfully  seized  the  mill  under  a  writ  of  attach- 
ment against  a  stranger  and  closed  the  operation  of  it,  contains 
a  sufficient  allegation  of  a  wrongful  taking  and  detention  of 
the  property,  at  least  after  verdict.4  AViiere  replevin  is  brought 
for  the  property  of  the  wife,  the  petition  must  set  out  the  wife's 
interest.5 

§  462.  In  actions  for  slander  or  libel. —  In  determining  the 
validity  of  the  petition  it  will  be  considered  that  defendant  in- 
tended to  charge  what  his  language  implied.  And  the  court  will 
not  make  any  strained  inference  in  favor  of  one  who  thought- 
lessly, or  else  maliciously,  touches  with  flippant  lightness  upon 
so  sacred  a  thing  as  private  character.6  Where  the  ground  of  the 
action  is  that  defendant  charged  that  plaintiff  had  been  guilty  of 
embezzlement,  it  is  not  necessary  that  the  petition  should  set 
forth  the  elements  of  the  crime  of  embezzlement  with  all  the  pre- 
cision and  certainty  required  in  an  indictment  for  the  offense.7 
If  the  libel  is  in  the  form  of  a  letter  or  other  writing,  which  im- 
putes to  the  plaintiff  an  indictable  offense,  or  which  contains  lan- 
guage which  is  for  any  reason  libelous  per  se,  it  is  sufficient  to 
set  out  the  writing  in  the  petition  verbatim?  And  it  is  sufficient 
to  charge  that  such  writing  was  sent  to  the  plaintiff  alone.9 
"Where  a  cause  of  action  for  slander  is  based  upon  words  imputing 
to  a  woman  the  crime  of  adultery,  the  petition  must  contain 
an  averment  that  plaintiff  was  at  the  time  a  married  woman.10 
Where  the  petition  alleged  that  plaintiff  was  charged  with  swear- 

1  Dillard  v.  McClure,  64  App.  491.  the  petition  was  held  to  clearly  ira- 

The  rule  seems  to  be  different  when  pute  a  charge  of  bribery,  or  of  know- 

the  suit  is  brought  before  a  justice  of  ing  that  money  was  to  be  used  for  the 

the  peace,    ilandol  v.  Buchanan,  61  purpose  of  bribery. 

App.  4 11  7  Wagner  v.  Saline  County  Printing 

z  Martin  v.  Block,  24  App.  60.  Co.,  45  App.  6. 

3  Singer  Mfg.  Co.  v.  Senn,  7  App.  584.  8Meyrose  v.  Adams,  12  App.  329; 

4  Keen  v.  Munger,  52  App.  060.  Houston  v.  Woolley,  37  App.  15. 
SHaile  v.  Palmer,  5  Mo.  403.  »  Houston  v.  Woolley,  37  App.  15. 
8  McGinnis  v.  Knapp,  109  Mo.  131.  10  Christal  v.  Craig,  80  App.  367. 

In  this  case  the  language  set  out  in 


§§  463,  46-1.]        FOKEGOING  RULES  APPLIED.  245 

ing  falsely  before  a  justice,  but  there  was  no  averment  that  the 
justice  had  jurisdiction  or  power  to  administer  oaths,  or  that  the 
testimony  was  as  to  a  material  matter,  the  petition,  though  de- 
fective, was  nevertheless  good  after  verdict.1 

§  463.  Same  —  Further  rules. —  In  a  very  early  decision  in 
this  state  it  is  said  that  the  slanderous  words  must  be  stated  in 
the  declaration  as  they  were  uttered,  in  order  that  the  defend- 
ant may  be  informed  against  what  charge  he  must  defend  him- 
self. But  the  court  added :  "  It  is  not,  certainly,  expected  that 
every  word  is  to  be  proved  exactly  as  laid  in  the  declaration,  but 
plaintiff  must  prove  such  of  them  as  will  suffice  to  sustain  his 
declaration,  and  it  will  not  suffice  to  prove  equivalent  expres- 
sions."2 It  is  not  enough  that  the  words  proved  are  of  equiva- 
lent meaning;  they  must  be  substantially  the  same  words  laid 
in  the  petition ;  though  if  the  words  charged  to  have  been  spoken 
are  proved,  but  with  the  omission  or  addition  of  others  not  vary- 
ing the  sense,  this  is  sufficient.3  It  is  not  necessary  that  the  pe- 
tition should  contain  an  allegation  that  the  slanderous  words 
were  spoken  in  the  presence  of  any  one,  or  that  they  were  under- 
stood by  those  present.4  If,  however,  the  words  spoken  are  in  a 
foreign  language,  then  the  petition  must  state  that  those  in  whose 
presence  they  were  spoken  understood  them.5  The  words  must 
be  charged  as  spoken  and  in  the  tongue  spoken ;  and  if  spoken 
in  a  foreign  language  they  must  be  followed  by  a  proper  trans- 
lation, and  it  is  improper  to  set  out  only  in  the  English  language 
words  spoken  in  a  foreign  language.6  If  the  words  are  correctly 
translated  in  the  petition,  it  is  immaterial  that  a  witness  trans- 
lates them  by  using  other  words  of  equivalent  meaning.7 

§464.  Same  —  Alleging  the  damages. —  The  test  as  to  the 
right  to  recover  general  damages  for  libel  is,  Does  the  law  infer 
damages  as  being  necessarily  occasioned  by  the  publication  ? 8  In 
the  case  cited  plaintiff's  action  was  for  libel  on  him  in  his  profes- 

i  Palmer  v.  Hunt,  8  Mo.  512.     But  in  2  Watson  v.  Musick,  2  Mo.  29. 

a  case  where  the  objection  was  made  3Noeninger    v.    Vogt,  88   Mo.   589; 

by    demurrer    to   the    evidence,  the  Walter  v.  Hoeffner,  51  App.  46. 

demurrer  was  sustained.     Harris  v.  4  Atwinger  v.  Fellner,  46  Mo.  276. 

Woody,  9  Mo.  113.     This  subject  is,  5  State  v.  Matheis,  44  App.  294. 

however,  fully  considered  in  chapter  6  Elf  rank  v.  Seiler,  54  Mo.  135;  State 

V.    See  §§  90-93.  v.  Marlier,  46  App.  233. 

The  question  whether  a  petition  in  7  Noeninger  v.  Vogt,  88  Mo.  589. 

slander  or  libel  should  contain  only  8Spurlock  v.  Lombard  Ins.  Co.,  59 

one  count,  or  several  counts,  is  treated  App.  225. 
in  chapter  X.    See  §  220. 


246  the  petition.  [§§  465,  466. 

sion  or  trade,  he  being  engaged  in  the  practice  of  law,  in  buying 
and  Belling  of  real  estate,  etc.,  in  building  houses,  and.  being  also 
the  owner  of  a  hotel.  The  court  says  that  the  question  is,  Does 
the  publication  complained  of  contain  anything  that  imputes  to 
plaintiff  in  any  one  of  his  numerous  qualities,  whether  as  a  law- 
yer, real-estate  dealer,  farmer,  innkeeper,  or  what  not,  fraud, 
dishonesty,  or  any  mean  or  dishonest  trickery  in  his  conduct,  in- 
solvency, past,  present  or  future,  or  want  of  credit  or  integrity 
or  of  any  pecuniary  ability  to  carry  on  his  business  with  suc- 
cess ? l  So,  too,  in  an  action  by  merchants  against  a  commercial 
agency  for  publishing  that  plaintiffs  were  insolvent,  where  the 
petition  charges  that  the  publication  is  a  libel  on  their  good 
name  and  credit,  and  by  reason  thereof  they  were  forced,  to  sus- 
pend business,  proof  of  the  loss  of  trade  as  an  element  of  dam- 
ages is  competent.2  Damages  for  disgrace  and  mortification 
suffered  as  the  result  of  a  slander  are  general,  and  may  be  recov- 
erable under  a  general  averment  of  injury  to  reputation.3 

§465.  Same  —  Averring  malice. —  If  the  slanderous  words 
are  spoken  falsely  of  the  plaintiff,  it  is  unnecessary  that  the  pe- 
tition should  contain  an  allegation  of  express  malice,4  for  every 
defamatory  publication  prima  facie  implies  malice.5  Malice  is 
sufficiently  charged  if  the  petition  alleges  that  defendant  wrong- 
fully, intentionally  and  without  just  cause  made  the  statement, 
and  that  such  statement  is  not  true ;  it  is  not  necessary  to  use 
the  word  "  maliciously." 6 

§  466.  Same  —  The  innuendo. —  The  office  of  an  innuendo  is 
to  explain  and  point  out  the  proper  meaning  of  the  words,  but 
not  to  extend  or  enlarge  such  meaning  beyond  what  is  warranted 
by  the  prefatory  matter,7  unless  the  words  have  acquired  a  local 
and  unaccustomed  import;  it  is  not  to  be  employed  as  a  substi- 
tute for  an  averment.8  Where  there  has  been  no  colloquium  or 
inducement  laid,  by  which  the  innuendo  becomes  needful  as  an 
explanation,  and  when  the  words  charged  are  actionable  by  them- 
selves, the  innuendo  may  be  rejected.9     It  is  not  the  office  of  the 

1  A  number  of  cases  are  cited  and  4  Hudson  v.  Garner,  22  Mo.  423. 
commented  on  in  the  opinion.  59App.,  5  Sullivan  v.  Strathan,  152  Mo.  268. 
pp.  230-233.  6  Linville  v.  Rhoades,  73  App.  217. 

2  Mitchell  v.  Bradstreet,  116  Mo.  226.  See  also  §  335,  ante. 

3  Nicholson  v.  Rogers,  129  Mo.  136.  7  Hudson  v.  Garner,  22  Mo.  423. 
The  rules  as  to  stating  the  damages,  8Boyce  v.  Aubuchon,  34  App.  315. 
and  the  relief  asked,  in  actions  for  And  the  same  principle  is  recognized 
slander  or  libel  will  be  found  under  in  Birch  v.  Benton,  26  Mo.  153. 

§  323,  ante,  9  Hudson  v.  Garner,  22  Mo.  423. 


§§  467,  468.]  FOREGOING   RULES   APPLIED.  247 

innuendo  to  make  averments,  but  to  apply  the  words  or  explain 
their  meaning.1  Innuendoes  are  used  to  so  connect  the  words 
charged  with  the  averments  as  to  make  the  petition  a  logical  and 
complete  statement  of  plaintiff's  case.2 

§  467.  Where  language  is  ambiguous,  and  is  as  susceptible  of 
a  harmless  as  of  an  injurious  meaning,  it  is  the  function  of  an 
innuendo  to  point  out  the  meaning  which  the  plaintiff  claims  to 
be  the  true  meaning  of  the  language,  and  the  meaning  upon 
which  he  relies  to  sustain  his  action.  This  is  so  whether  the 
ambiguity  be  patent  or  latent,  and  whether  or  not  any  facts  are 
alleged  as  inducement.  The  defendant  is  thus  informed  of  the 
precise  charge  he  has  to  meet,  and  which  he  has  to  deny  or  justify. 
On  the  other  hand,  the  plaintiff  is  subjected  to  the  risk  that  if  he 
claims  for  the  language  a  meaning  which  is  not  the  true  one,  or 
one  which  he  is  unable  to  make  out  satisfactorily,  he  may  be  de- 
feated on  the  ground  of  variance  or  failure  of  proof.  For  when 
plaintiff  by  his  innuendo  puts  a  meaning  on  the  language,  he  is 
bound  by  that  meaning,  although  it  may  destroy  his  right  to 
maintain  the  action.3  The  innuendo  is  thus  intended  to  define 
the  defamatory  meaning  which  the  plaintiff  placed  upon  the 
words  used.  In  case  the  defamatory  meaning  is  apparent  from  the 
language  charged,  there  is  no  necessity  for  an  innuendo.  There- 
fore the  innuendo  becomes  a  part  of  the  cause  of  action  stated.4 

§  468.  But  the  rule  that  the  innuendo  is  a  part  of  the  cause  of 
action  stated  in  the  petition  does  not  obtain  when  the  words 
charged  are  actionable  in  themselves.  In  such  case  the  defend- 
ant can  put  in  issue  the  truth  of  the  words  spoken,  either  with 
or  without  their  alleged  meaning,  and  it  will  then  be  for  the 
jury  to  say  whether  or  not  the  innuendo  is  sustained.  If  it  is 
not  sustained,  plaintiff  may  still  fall  back  upon  the  words  them- 
selves, and  urge  that,  taken  in  their  natural  and  obvious  signifi- 
cation, they  are  actionable  in  themselves  without  the  meaning 
alleged,  and  that  therefore  the  unproved  innuendo  may  be 
rejected  as  surplusage.5  No  innuendo  is  necessary  to  explain 
the  word  "  defaulter,"  when  used  in  a  newspaper  article  charg- 
ing that  plaintiff  could  not  qualify  for  an  elective  office  because 

JBundy  v.  Hart,  46  Mo.  4G0;  Powell  5  Callahan  v.  Ingram,  122  Mo.  355. 

v.  Crawford,  107  Mo.  593;    Wood  v.  And  this  rule  is  recognized  in  a  much 

Hilbish,  23  App.  389.  earlier  case.     Hudson  v.   Garner,  22 

2  Legg  v.  Dun  levy,  80  Mo.  558.  Mo.  423.    In  this  last  case  there  is  a  full 

3  Townshend  on  Slander  and  Libel,  discussion  of  the  office  of  the  innuendo, 
sec.  338;  Hudson  v.  Garner,  22  Mo.  423.  and  many  authorities  are  cited.  * 

4  Callahan  v.  Ingram,  122  Mo.  355. 


248  THE    PETITION.  [§  4G9. 

he  was  a  defaulter.  "When  that  term  is  employed  to  explain  a 
disqualification  for  holding  a  public  office,  but  one  meaning  can 
attach  to  it  in  the  minds  of  all  persons  of  ordinary  intelligence.' 
§  {09,  Same  —  T'ie  colloquium. —  Under  the  common  law, 
if  the  words  wore  actionable  in  themselves,  it  was  not  necessary 
to  aver  that  they  were  spoken  in  a  conversation  of  or  about 
plaintiff;  but  if  they  had  a  slanderous  meaning,  not  of  their  own 
intrinsic  force,  but  by  reason  of  certain  extrinsic  facts  and  cir- 
cumstances which  made  them  actionable,  these  facts  must  have 
been  alleged  as  an  inducement,  and  then  there  must  have  been 
a  colloquium  averring  a  speaking  of  them  of  and  concerning  the 
plaintiff.2  But  section  635 3  provides  that  in  such  an  action  it 
shall  not  be  necessary  to  state  in  the  petition  any  extrinsic  facts 
for  the  purpose  of  showing  the  application  to  the  plaintiff  of  the 
defamatory  matter  out  of  which  the  cause  of  action  arose,  but  it 
shall  be  sufficient  to  state  generally  that  the  same  was  published 
or  spoken  concerning  the  plaintiff;  and  unless  such  allegation  is 
controverted  in  the  answer,  it  shall  not  be  necessary  to  prove  it 
on  the  trial.4  If  the  words  complained  of  are  not  actionable 
per  se,  the  petition  must  contain  statements  of  extrinsic  matter 
showing  that  they  were  actionable,5  whether  the  action  is  one 
for  libel  or  one  for  slander.6  It  is  not  sufficient  to  make  these 
extrinsic  facts  appear  by  innuendo,  for  it  is  not  the  office  of  the 
innuendo  to  make  averments,  but  to  apply  the  words  or  explain 
their  meaning.7  And  if  the  words  are  in  themselves  innocent 
without  the  explanatory  facts,  the  absence  of  averments  setting 
forth  these  explanatory  facts  cannot  be  supplied  by  the  innuendo? 
Where  the  words  charged  are  connected  with  other  facts,  such 
facts  must  be  considered  with  the  charge,  and  the  natural  and 
ordinary  signification  must  be  given  to  the  whole  matter  thus 
connected.  If  thus  considered  a  libel  is  not  charged,  the  case 
fails;  and,  on  the  other  hand,  if  a  libel  is  charged,  the  case  stands, 
and  must  be  met  by  the  defendant.9    If  a  word  is  used  in  a  sense 

i  State  v.  Kountz,  12  App.  511.  v.  Dunlevy,  10  App.  461;  Wood  v.  Hil- 

2  Palmer  v.  Hunter,  8  Mo.  512;  Mo-    bish,  23  App.  389. 

Manas  v.  Jackson,  28  Mo.  56;  Powell  6Legg  v.  Dunlevy,  10  App.  461. 

v.  Crawford,  107  Mo.  595.  ?  Bundy  v.  Hart,  46  Mo.  460;  Wood 

3  Rev.  Stat.  1809.  v.  Hilbish,  23  App.  389. 
*Stieber    v.   Wensel,    19    Mo.    513;  8  Salvatelli  v.  Ghio,  9  App.  155. 

Caruth  v.  Richeson,  96  Mo.  186;  Mo-        9  Wagner  v.  Saline  County  Printing 
Manus  v.  Jackson,  28  Mo.  56.  Co.,  45  App.  6. 

&  Curry  v.  Collins,  37  Mo.  324;  Legg 


§§  470,  471.]  FOREGOING   EULES    APPLIED.  249 

different  from  its  ordinary  meaning,  there  must  be  an  averment 
to  that  effect,  and  it  must  also  be  alleged  that  the  hearers  under- 
stood it  in  that  sense.1 

§  470.  "Where  the  words  complained  of  do  not  identify  the 
plaintiff  but  may  apply  to  another  or  others  exclusively,  the  peti- 
tion must  allege  facts  showing  that  the  words  referred  to  the 
plaintiff  and  were  so  understood  by  the  hearers.2  For  if  the 
defamatory  matter  points  to  no  person  in  particular,  it  becomes 
a  question  of  fact  whether  it  does  or  does  not  apply  to  plaintiff.3 
If  the  words  are  not  actionable  per  se,  and  the  ground  of  the 
complaint  is  that  plaintiff  has  been  injured  in  respect  to  his 
character,  reputation  or  business,  he  must  aver  that  the  words 
were  spoken  in  reference  to  one  of  these,  and  special  damage 
must  be  averred  and  proved.4  Thus,  where  the  petition  charges 
that  words  were  written  of  plaintiff  charging  that  he  was  super- 
vising architect  of  a  certain  building,  and  that  he  promised  to 
give  to  defendant's  firm  a  contract  for  work  on  such  building, 
provided  the  sum  of  $200  was  paid  to  him  as  commissions,  it  was 
held  that,  in  the  absence  of  averments  of  any  extrinsic  facts  show- 
ing that  these  words  had  a  libelous  meaning,  the  petition  was 
fatally  defective.5  Allegations  that  in  consequence  of  the  publica- 
tion of  a  notice  of  dissolution  of  a  partnership  by  one  not  a 
member  of  the  firm,  a  general  loss  of  custom  had  resulted  to 
plaintiffs,  and  many  people  were  prevented  from  transacting 
business  with  them,  and  that  their  commercial  and  financial 
standing  was  reduced,  do  not  render  the  publication  libelous.6 

§  471.  Illustrations  as  to  the  innuendo  and  colloquium. — 
The  words  charged  in  the  petition  were  that  plaintiff  "swore  to 
a  lie,"  with  an  averment  that  defendant  meant  and  was  under- 
stood to  charge  plaintiff  with  the  crime  of  perjury,  but  without 
a  colloquium,  and  the  petition  was  held  bad.7  There  should  be 
proper  averments  that  plaintiff  was  sworn  as  a  witness  in  a  judi- 
cial proceeding  and  that  the  speaking  of  the  words  had  reference 
to  such  a  proceeding ; 8  though  the  words  "  you  swore  to  a  lie  be- 

1  Dyer  v.  Morris,  4  Mo.  214.  it  was  made  to  appear  that  those  duties 

2  Crecelius  v.  Bierman,  59  App.  513.  are  in  conflict  with  his  taking  com- 

3  Caruth  v.  Richeson,  96  Mo.  136.  missions  from  a  subcontractor  to  aid 
*  Curiy  v.  Collins,  37  Mo.  324.  him  in  making  a  subcontract  on  the 
8  Legg  v.  Dunlevy,  80  Mo.  558.    In  building  he  is  supervising. 

that  case  there  was  no  statement  of        6  Baldwin  v.  Walser,  41  App.  243. 
what  are  the  duties  of  a  supervising        7  Palmer  v.  Hunter,  8  Mo.  512. 
architect,  nor  any  allegation  by  which        8  McManus  v.  Jackson,  28  Mo.  56. 


25  I  THE  PETITION.  [§§  472, 473. 

fore  the  grand  jury  "  arc  actionable  jicr  se.x  Where  the  slander 
imputed  was  in  relation  to  the  crime  of  passing  counterfeit 
money,  there  must  be  a  colloquium  that  the  words  were  spoken 
of  and  concerning  the  plaintiff's  commission  of  the  offense,  know- 
ing the  money  to  be  counterfeit;  and  the  want  of  such  an  alle- 
gation is  not  aided  by  the  innuendo.2  Where  the  petition  con- 
tained the  words,  said  of  a  woman,  "she  has  gone  down  the 
river  with  two  whores  to  a  goose  horn  at  St.  Louis  and  is  now 
there  with  them,"  it  is  necessary,  in  order  to  make  the  words 
actionable,  that  there  should  be  an  innuendo  as  to  the  kind  of 
a  place  meant  by  "goose  horn.*  So,  too,  the  words  "I  stroked 
her,"  without  any  innuendo  as  to  the  signification  of  the  word 
"  stroked,"  are  not  slanderous.4  It  is  to  be  borne  in  mind,  how- 
ever, that  though  the  word  used  is  one  that,  on'  account  of  its 
obscenity,  is  not  defined  by  lexicographers,  it  may  nevertheless 
be  an  English  word,  the  meaning  of  which  is  well  understood.5 

§  472.  Slander  of  title. —  A  cause  of  action  is  sometimes  de- 
nominated slander  of  title  by  a  sort  of  figure  of  speech,  in  which 
the  title  is  personified,  and  made  subject  to  many  of  the  rules 
applicable  to  personal  slander,  when  the  words  themselves  are 
not  actionable.  It  is  the  special  damage  that  gives  the  cause  of 
action;  and  it  is  essential  that  the  statement  should  be  both  false 
and  malicious,  that  is,  that  it  be  made  with  the  intent  to  injure 
the  plaintiff.  Falsehood,  malice,  and  injury  to  the  plaintiff 
must  all  be  alleged  and  proved.  And  the  necessity  for  these 
allegations  does  not  depend  upon  the  medium  through  which 
the  slander  is  conveyed,  whether  in  words,  writing  or  print,  be- 
cause the  nature  of  the  action  is  one  for  special  damage  actually 
sustained,  and  not  an  action  for  slander.  The  fact  that  the  pub- 
lication is  written  or  printed,  and  not  oral,  makes  no  difference  in 
the  ground  of  the  action,  and  goes  only  to  the  question  of  dis- 
semination and  consequent  damage.6  The  action  will  lie  for 
slander  of  title  to  letters  patent.7 

§  473.  Actions  for  delinquent  taxes. —  In  an  action  to  collect 
delinquent  taxes  the  petition  need  not  set  out  all  the  steps  re- 
quired to  be  taken  in  order  to  make  the  tax  a  valid  one.8  If  the 
petition  does  not  contain  a  description  of  the  land  sought  to  be 

i  Perselly  v.  liacon,  20  Mo.  330.  6  Meyrose  v.  Adams,  12  App.  329, 332. 

2  Church  v.  Bridgman,  (J  Mo.  190.  7  Meyrose  v.   Adams,  12  App.  329; 

3  Dyer  v.  Morris,  4  Mo.  214.  Linville  v.  Rhoades,  73  App.  217. 

*  Adams  v.  Harmon,  3  Mo.  222.  «  State  ex  rel  v.  Rau,  93  Mo.  126. 

6  Edgar  v.  McCutchen,  9  Mo.  70S. 


§§  474,  475.]  FOKEGOING    EULES    APPLIED.  251 

charged  with  the  lien  of  the  tax,  it  is  fatally  defective  even  after 
verdict.1  If  the  action  is  against  a  railroad  company  for  delin- 
quent taxes,  it  need  not  describe  the  property  otherwise  than  as 
so  many  miles  of  a  given  value,  with  a  proper  proportion  of  the 
value  of  the  rolling  stock  added.2  There  should  be  an  allegation 
that  the  land  has  been  returned  delinquent  or  had  been  forfeited 
to  the  state.3  If  the  petition  avers  an  assessment  by  the  proper 
authority  in  a  sum  specified,  the  levy  of  specific  taxes  thereon 
by  the  duly  constituted  authorities,  the  effort  of  the  collector  to 
collect  the  taxes  and  his  failure  to  do  so,  the  return  of  the  taxes 
as  delinquent,  and  the  necessity  for  the  action  for  taxes,  penalties, 
costs  and  attorney's  fees,  it  is  sufficient ;  it  is  not  necessary  to 
set  out  the  district  assessor's  valuation  for  each  year,  the  taxes 
for  which  are  delinquent,  nor  is  it  necessary  to  allege  the  doub- 
ling of  the  valuation  by  the  assessor.4  "Where  the  proceeding  is 
for  the  purpose  of  establishing  a  demand  against  the  estate  of  a 
decedent  for  taxes  which  have  accrued  on  personalty  in  the  hands 
of  the  administrator,  the  petition  should  set  out  the  taxes  for 
each  of  the  years  in  separate  counts.5 

§  474.  Same  —  By  municipality. —  In  an  action  by  a  city  to 
recover  delinquent  taxes,  the  sufficiency  of  the  petition  must  be 
measured  by  the  provisions  of  the  statute.6  In  actions  by  cities 
of  the  second  class  under  section  5639,7  all  that  is  necessary  to 
aver  is  the  amount  of  the  tax,  the  rate  of  interest,  and  date  from 
which  it  is  claimed,  the  property  upon  which  the  tax  is  charged 
as  a  lien,  the  name  of  the  owner,  and  the  year  or  years  for  which 
the  tax  was  levied,  and  that  it  has  not  been  paid;  if  the  tax 
sued  for  is  a  special  tax,  the  petition  must  also  show  the  date 
and  title  of  the  ordinance  under  which  it  was  levied.8  It  is  not 
necessary  to  allege  that  the  sale  had  been  discontinued,  nor  that 
the  realty  had  been  bid  off  by  the  city,  nor  that  the  taxes  be- 
came delinquent  before  the  date  of  the  act.9 

§  475.  Actions  on  special  tax-bills, —  "Where  an  action  is 
brought  upon  a  special  tax-bill  against  the  owner  of  the  property, 
it  is  sufficient  in  the  first  instance  to  set  forth  the  provisions  of  the 

i  Vaughan  v.  Daniels,  98  Mo.  230.  6  State  ex  rel.  v.  Thompson,  149  Mo. 

2  State  ex  rel.  v.  Hannibal  &  St.  J.  441. 

R  Co.,  101  Mo.  136.  7  Rev.  Stat.  1899. 

a  Wellshear  v.  Kelley,  69  Mo.  343.  8  St  Joseph  v.  Kansas  City,  St.  J.  & 

*  State  ex  rel.  v.  Cummings,  151  Mo.  C.  B.  R  Co.,  118  Mo.  671.    But  see  the 

49.  next  succeeding  section. 

5  State  ex  reL  v.  Tittmann,  103  Mo.  9  Ibid. 
653. 


252  the  petition!  [§§  476,  477. 

tax-bill,  and  allege  that  it  was  issued  to  plaintiff  by  the  munici- 
pal officers  duly  authorized  to  do  so,  and  that  defendant  is  the 
owner  o(  the  land  sought  to  be  charged.1  The  contract  between 
the  city  and  the  contractor  need  not  be  set  out.2  And  where 
the  city  charter  provides  that  in  suing  on  a  special  tax-bill  it 
shall  be  sufficient  for  plaintiff  to  plead  the  making  and  the  issu- 
ing of  the  tax-bill,  giving  the  date  and  contents  thereof,  it  is  not 
necessary  to  copy  the  tax-bill  in  the  petition,  but  it  is  sufficient 
to  state  the  substance  of  it.3 

§  476.  A  city  charter  provided  that  whenever  the  mayor  and 
city  council  should  order  the  improvement  of  a  street,  its  cost 
should  be  paid  by  the  property  owners,  and  that  when  the  work 
should  be  completed  under  the  authority  of  an  ordinance  the 
city  engineer  should  compute  the  cost  and  assess  it  as  a  special 
tax  against  the  property.  In  an  action  upon  a  tax-bill  issued 
for  paving  a  sidewalk,  the  petition  failed  to  state  that  the  work 
was  done  by  virtue  of  an  ordinance  passed  by  the  mayor  and 
council,  and  that  the  city  engineer  had  computed  the  cost  of  it, 
and  this  omission  was  held  to  be  a  fatal  defect.4  If  the  charter 
and  the  ordinance  require  that  the  cost  shall  be  shared  by  the 
owners  of  the  adjacent  property  proportionately  to  the  cost  of 
the  whole  work,  though  the  petition  states  that  each  lot  was 
charged  for  the  work  done  in  front  of  it,  and  that  the  engineer 
computed  the  cost  of  the  work  done  in  front  of  and  adjoining 
the  lot,  and  not  for  tbe  proportionate  share  of  the  cost  of  the 
whole  work,  yet  if  the  cost  is  alleged  to  have  been  that  charge- 
able to  the  specified  lot,  and  it  is  averred  that  the  amount  assessed 
was  the  proportionate  cost  of  the  work  under  the  act,  the  peti- 
tion is  sufficient.5  Where  a  special  tax-bill  issued  by  a  city  of 
the  third  class  is  sued  on  by  an  assignee,  he  need  only  allege  the 
making  of  the  bill,  its  contents  and  date,  its  assignment,  the  fil- 
ing of  it,  and  that  defendant  owns  the  lot  against  which  he 
seeks  to  establish  the  lien.  If  additional  allegations  are  made, 
stating  facts  which  show  an  improper  authorization  of  the  work, 
a  demurrer  will  lie  to  the  petition.6 

§  477,  Action  for  a  tort. —  In  an  action  for  damages  occa- 
sioned by  lowering  the  grade  of  a  city  street,  it  was  alleged  that 

i  Vietbs  v.  Planet  P.  &  F.  Co.,  64       *  Irvin  v.  Devors,  65  Mo.  625. 
App.  207.  6  Morley  v.  Weakley,  86  Mo.  451. 

2  St.  Louis  v.  Hardy,  35  Ma  261.  «  Carthage  v.  Badgley,  73  App.  123. 

3  Hunt  v.  Hopkins,  66  Mo.  98;  Bu- 
chan  v.  Broadwell,  88  Mo.  31. 


§  478.]  F0KEG0ING   KULES   APPLIED.  253 

the  defendant  city,  wrongfully  contriving  to  injure  the  plaintiff 
and  deprive  him  of  his  property,  did  the  act  complained  of;  and 
it  was  held  that  this  sufficiently  charged  an  unjustifiable  and 
wanton  injury,  and  that  if  the  acts  were  done  in  the  exercise  of 
lawful  authority,  this  was  a  matter  of  defense  to  be  set  up  in  the 
answer.1 

§  478.  Actions  for  trespass. —  It  is  essential  in  trespass  de  lonis 
asportatis,  as  well  as  in  trover,  that  plaintiff  should  allege  that 
he  had  possession,  actual  or  constructive,  of  the  property  at  the 
date  of  the  alleged  wrongful  interference  with  it  by  defendant.2 
In  trespass  quare  clausum,  the  petition  is  bad  if  it  fails  to  aver 
that  the  plaintiff  was  ever  in  possession  of  the  premises ;  it  is  not 
sufficient  to  allege  that  he  is  entitled  to  the  exclusive  possession 
of  them.3  But  in  such  case  an  averment  of  ownership  by  plaintiff 
is  sufficient;  it  is  not  then  necessary  to  allege  an  actual  possession, 
since  the  owner  of  lands  is  presumed  to  be  in  possession  until  the 
contrary  appears.4  "When  a  party  has  the  legal  estate  in  fee  he  has 
the  constructive  possession,  when  there  is  no  actual  possession  in 
any  one  else.5  A  petition  which  states  that  at  the  time  of  the  tres- 
pass plaintiff  was  in  the  exclusive  and  peaceable  possession  of  the 
premises,  and  that  he  was  mining  under  and  in  compliance  with 
the  terms  of  a  valid  lease  from  a  former  owner  which  had  not 
expired,  that  defendant  unlawfully  and  against  plaintiff's  will 
ousted  him  from  the  possession  of  the  premises,  and  thereby  de- 
prived him  of  the  beneficial  use  of  the  property  for  the  re- 
mainder of  the  term,  is  sufficient.6  If  the  action  is  brought  by 
an  executor  and  the  petition  alleges  that  the  testator  was  the 
owner  of  the  lands  at  the  time  of  the  trespass,  this  is,  under  the 
rulings  of  the  preceding  cases,  a  sufficient  allegation  of  possession 
by  the  testator.7  In  an  action  for  treble  damages  under  section 
4572,8  where  the  trespass  charged  is  the  cutting  and  carrying 
away  of  timber,  it  is  not  necessary  that  the  petition  should  state 
that  the  trespass  was  committed  contrary  to  the  form  of  the 
statute.  But  it  is  necessary  to  state  that  the  defendant  had  no 
interest  or  right  in  the  timber  cut  and  carried  away,  and  that 
it  was  taken  from  land  not  his  own.9    The  description  of  the 

1  Hill  v.  St.  Louis,  59  Mo.  412.  6  Eobertson    v.    Cleveland  Mineral 

2  Deland  v.  Vanstone,  26  App.  297.  Land  Co..  70  App.  262. 

3  Garner  v.  McCullough,  48  Mo.  318.        7  Bell  v.  Clark,  30  App.  224. 

4  Bell  v.  Clark,  30  App.  224  «  Rev.  Stat.  1899. 

BRenshaw  v.  Lloyd,  50  Mo.  368;  Hoi-  9  Hewitt  v.  Harvey,  46  Mo.  368;  Hol- 
laday-Klotz  L.  &  T.  Co.  v.  Moss  Tie  laday-Klotz  Co.  v.  Moss  Tie  Co.,  79 
Co.,  79  App.  543.  App.  543. 


254  THE  PETITION.  [§§470,480. 

premises  as  "a  building  and  premises  in  block  No.  84  of  the  city 
of  St.  Louis  "  is  sufficient.1 

§  470,  Trespass  for  mesne  profits. — In  an  action  for  trespass 
for  mesne  profits  at  common  law,  the  right  of  recovery  is  based 
on  four  things:  first,  title  to  or  possession  of  the  premises;  second, 
the  expulsion  of  plaintiff;  third,  the  reception  of  rents  or  profits 
by  defendant;  and  fourth,  a  re-entry  by  plaintiff.  Unless  the 
petition  states  all  these  essential  facts  it  is  fatally  defective.  And 
as  such  action  cannot  be  maintained  against  a  defendant  who  is 
in  actual  possession,  if  the  petition  shows  that  defendant  was  in 
possession  at  the  time  of  the  commencement  of  the  action,  it  is 
bad.2 

§  480.  Action  for  waste. —  In  the  case  of  an  action  by  a  rever- 
sioner against  a  dowress,  the  rule  is  that,  if  plaintiff  declares  as 
reversioner  for  an  injury  done  to  his  reversion,  the  petition  must 
allege  it  to  have  been  done  to  the  injury  of  the  reversion,  or  must 
state  an  injury  of  such  a  permanent  character  as  to  be  necessarily 
injurious  to  his  reversion.3  If  the  action  is  against  an  adminis- 
trator by  a  distributee  after  final  settlement,  charging  waste  and 
mismanagement  of  the  estate,  the  petition  is  fatally  defective  if 
it  fails  to  state  that  there  are  no  creditors,  and  that  the  property 
alleged  to  have  been  wasted  was  not  applicable  to  the  paj^ment 
of  debts.4 

i  Burt  v.  Warne,  31  Ma  296.    Inoon-  sProffit  v.  Henderson,  20  Mo.  325; 

nection  with  this  subject  see  §  447,  Van  Hoozer  v.  Van  Hoozer,  18  App.  19. 

ante,  note  4,  p.  238.  4  Foster  v.  Kenrick,  71  Mo.  422. 

2  Young  v.  Downey,  145  Mo.  261. 


CHAPTER  XVI. 

THE  RULES  APPLICABLE  TO  BILLS  IN  EQUITY. 


§  481.  Bill  for  an  accounting. 

482.  Proceeding  against  sharehold- 

ers. 

483.  Bill  against  legal   representa- 

tive. 

484.  Bill  for  an  injunction. 

486.  Bill  to  correct  mistake. 

487.  Bill  to  redeem. 


488.  Bill  to  set  aside  deed. 

489.  Bill  to  set  aside  trustee's  sale. 

490.  Bill  to  set  aside  fraudulent  con- 

veyance. 

491.  Bill  for  specific  performance. 

492.  Bill  for  subrogation. 

493.  Bill  to  establish  rights  under  a 

will. 


§  481.  Bill  for  an  accounting. —  A  bill  for  an  accounting  be- 
tween partners  must  either  state  or  pray  for  an  account.1  And 
if  the  plaintiff  himself  kept  all  the  partnership  accounts,  the  peti- 
tion should  contain  an  exhibit  of  the  partnership  transactions.2 
A  bill  to  take  an  account  between  a  mortgagor  and  mortgagee 
is  fatally  defective  if  it  does  not  allege  that  defendant  as  mort- 
gagee went  into  possession  of  the  land  after  condition  broken, 
or  that  he  entered  into  possession  of  the  same  under  a  mortgage 
sale.3 

§  482.  Proceeding  against  shareholders. — "Where  a  judgment 
creditor  of  a  corporation  files  a  bill  against  the  corporation  and 
certain  of  its  stockholders,  claiming  that  the  stockholders  have 
not  paid  in  full  the  amount  due  on  their  shares,  and  seeking  to 
enforce  their  liability  for  the  unpaid  balance,  if  the  bill  does  not 
allege  that  the  shares  held  by  the  stockholders  are  assessable,  or 
that  some  amount  is  due  to  the  corporation  from  such  share- 
holders on  account  of  the  shares  held  by  them,  it  fails  to  state  a 
cause  of  action.  The  petition  must  exclude  the  idea  that  the 
defendant  stockholders  may  have  purchased  for  less  than  their 
face  value  shares  which  had  originally  been  fully  paid.4 

§  483.  Kill  against  legal  representative. —  A  bill  to  set  aside 
the  final  settlement  of  an  administrator  must  charge  that  the 
allowances  complained  of  were  procured  by  fraudulent  and  false 

1  Pope  v.  Salsman,  35  Mo.  362.  For  requisites  of  creditor's  bill,  see 

2  Scott  v.  Caruth,  50  Mo.  120.  §  490,  post. 

3Tetherow  v.  Chambers,  74  Mo.  183.        4  Blanke  v.  St.  Louis-Sonora  Mining 
See  also  §  489,  post.  Co.,  35  App.  186.    See  also  §  490,  post. 


256  the  petition.  [§§  -184,  4S5. 

moans,  unjustly,  to  the  injury  of  the  estate  and  of  the  parties 
interested.1  Where  a  bill  is  filed  by  a  distributee  of  an  estate 
tnst  on  administrator  after  his  final  settlement,  charging  him 
with  waste  and  mismanagement,  it  is  fatally  defective  if  it  fails 
to  state  that  there  are  no  creditors,  and  that  the  property  al- 
leged  to  have  been  wasted  was  not  applicable  to  the  payment  of 
debts.2 

§  484:.  Bill  for  an  injunction. —  A  general  allegation  in  a  bill 
for  an  injunction  that  the  threatened  damages  are  irreparable  is 
not  sufficient;  the  averments  of  the  petition  must  show  how  and 
for  what  reason  the  damages  would  be  irreparable.3  Traversable 
facts  must  be  stated  in  the  bill,  which  show  that  plaintiffs  can- 
not have  an  adequate  remedy  at  law,  or  that  the  injury  cannot 
be  compensated  by  an  action  for  damages  as  such.4  Where  the  bill 
is  to  enjoin  a  nuisance,  the  facts  constituting  the  nuisance  should 
be  fully  set  out,  so  that  the  court  may  see  and  determine  from 
the  allegations  of  the  bill  the  consequences  of  the  act  sought  to 
be  enjoined;  a  mere  general  averment  that  results  constituting 
a  nuisance  will  follow  from  defendant's  acts  is  not  sufficient. 
Thus,  when  the  bill  seeks  to  enjoin  the  use  of  a  proposed  dairy, 
the  bill  must  contain  a  statement  of  the  methods  in  which  it  is 
intended  to  use  the  dairy.5  If  the  bill  seeks  to  prevent  threat- 
ened damages  in  cutting  timber,  it  must  show  whether  defendant 
is  in  possession,  and  what  title,  if  any,  he  claims.3  Where  the 
owner  of  property  abutting  upon  a  city  street  seeks  to  enjoin 
the  city  from  vacating  such  street,  it  is  not  sufficient  to  allege 
that  he  is  the  owner  of  property  on  the  street,  but  he  must  allege 
that  his  property  fronts  or  abuts  on  that  part  of  the  street  which 
it  is  proposed  to  vacate,  and  that  he  will  suffer  a  special  or  pe- 
culiar injury,  and  not  merely  such  inconvenience  as  is  caused  to 
all  other  persons  in  the  neighborhood.6 

§  485.  A  bill  to  restrain  the  collection  of  taxes  on  the  ground 
of  excessive  valuation,  which  sets  forth  that  the  plaintiff,  believ- 
ing all  his  property  to  be  exempt  from  taxation,  did  not  deliver 
any  list  of  property  to  the  assessor,  but  which  contains  no  aver- 

i  Crowley  v.  McCrary,  45  App.  350.        3  McKinzie  v.  Mathews,  59  Mo.  99. 

2  Foster  v.  Kenrick,  71  Mo.  422.  4  State  ex  reL  v.  Wood,  155  Mo.  425, 

For  principles  governing  bills  to  set  447. 
aside    fraudulent   conveyances,    see        sMcDonough  v.  Eobbens,  60  App. 

§  490,  post.  156. 

For  a  bill  in  equity  by  a  wife  against        6  Glasgow  v.  St.  Louis,  107  Mo.  198; 

her  husband,  see  §  391,  ante.  Knapp  v.  St.  Louis,  153  Mo.  560. 


§§  4S6— 188.]       KULES    APPLICABLE   TO    BILLS    IN    EQUITY.  257 

ment  that  the  assessor  failed  to  demand  a  list,  states  no  ground 
for  relief.1  "Where  the  bill  is  filed  by  a  taxpayer  praying  that 
the  disbursement  of  taxes  be  enjoined  on  the  ground  that  they 
were  illegally  levied  and  collected,  plaintiff  must  state  the  amount 
of  taxes  paid  by  him,  so  as  to  show  substantial  and  serious  dam- 
age, and  not  a  mere  technical  and  inconsequential  injury.2  A 
bill  to  enjoin  the  collection  of  a  judgment  must  make  an  exhibit 
of  the  transcript  of  the  judgment.3  If  it  is  sought  to  restrain 
the  collection  of  a  judgment  obtained  before  a  justice  of  the 
peace,  and  to  obtain  an  appeal  which  plaintiff  was  prevented 
from  taking  by  the  absence  of  the  justice,  the  bill  must  show 
how  much  of  the  judgment  is  unjust,  must  set  out  the  facts  show- 
ing that  plaintiff  had  not  a  fair  trial  at  law,  and  must  allege  that 
he  was  not  apprised  of  the  intended  departure  of  the  justice.4 

§  486.  Bill  to  correct  mistake, —  Where  one  seeks  to  correct 
a  contract  which  is  claimed  to  have  been  erroneously  drawn 
through  mistake,  he  must  show  in  his  petition  how  he  is  injured 
by  the  mistake.5 

§  487.  Bill  to  redeem. —  A  petition  cannot  be  sustained  as  a 
bill  to  redeem  from  a  mortgage  if  it  fails  to  allege  that  the  mort- 
gagee is  in  possession  of  the  mortgaged  premises  and  has  refused 
to  permit  the  mortgagor  to  redeem.6  If  a  petition  to  set  aside 
a  foreclosure  sale  and  to  redeem  the  property  from  the  debt 
shows  a  case  in  which  it  is  necessary  to  take  an  account  of  rents, 
taxes,  repairs,  etc.,  an  offer  in  the  petition  to  pay  whatever  shall 
be  found  to  be  due  on  the  property  is  sufficient ;  tender  before 
suit  is  not  required,  nor  need  plaintiff  bring  any  money  into  court 
until  the  amount  due  is  ascertained.7 

§  488.  Bill  to  set  aside  deed. —  Where  it  is  sought  to  set  aside 
the  deed  of  a  person  not  under  guardianship  upon  the  ground 
that  he  was  insane  when  he  executed  it,  the  petition  is  fatally 
defective  if  it  merely  charges  that  the  deed  is  void.  There  must 
be  averments  not  only  that  the  maker  was  insane  at  the  time  he 

1  Meyer  v.  Rosenblatt,  78  Mo.  495.  §  415,  ante,  where  a  bill  in  equity  to 

2  Robins  v.  Latham,  134  Mo.  466.  foreclose  a  mortgage  is  referred  to. 

3  Parsons  v.  Wilkerson,  10  Mo.  713.  Bills  to  set  aside  a  mortgage  sale  are 

4  Smith  v.  D'Lashmutt,  4  Mo.  103.  considered  in  §  489,  post. 

5  Stoddard  v.  Murdock,  37  Mo.  580,  As  to  an  accounting  between  mort- 
8Tetherow  v.  Chambers,  74  Mo.  183.  gagor  and  mortgagee,  consult  g  481, 
7  Kline  v.  Vogel,  90  Mo.  239.  ante;  §  489,  post.  As  to  redemption 
The  rules  governing  a  petition  to  from  mortgage,  see  §  487,  post. 

foreclose  a  mortgage  will  be  found  in 
Mo.  Code  Pl.— 17 


THE    PETITION.  [§§  4S9,  490. 

executed  the  deed,  but  that  the  grantee  knew  that  he  was  insane 
and  took  advantage  of  it.  If  this  last  averment  cannot  be  made 
by  reason  of  the  fact  that  defendant  dealt  fairly  with  the  insane 
grantor  ami  without  knowledge  of  his  condition,  the  petition 
must  then  aver  an  ability  and  willingness  on  the  part  of  plaint- 
iff to  put  the  defendant  in  statu  quo.1  In  a  bill  filed  to  set  aside 
a  tax  deed  and  the  deeds  to  subsequent  purchasers,  an  allegation 
that  the  considerations  expressed  in  the  deeds  to  the  subsequent 
purchasers  were  wholly  false  is  not  sufficient  to  connect  the  sub- 
sequent purchasers  with  inadequacy  of  price  in  the  tax  sale,  or 
with  notice  thereof.2 

§  489.  Bill  to  set  aside  trustee's  sale. —  In  a  suit  to  set  aside 
a  trustee's  sale  under  a  deed  of  trust  the  petition  must  contain  an 
offer  by  the  plaintiff  to  redeem.3  In  a  bill  filed  by  the  grantor 
in  a  deed  of  trust  against  the  trustee  it  was  charged  that  there 
was  an  agreement  between  the  parties  that  if  the  sale  should  not 
bring  the  amount  of  the  debt  the  land  should  be  held  and  sold 
again  by  the  trustee,  and  whatever  excess  above  the  debt  was 
realized  should  be  paid  to  the  grantor;  that  the  sale  was  had  and 
the  trustee  became  the  purchaser  for  the  benefit  of  the  cestui  que 
trust;  that  the  latter  afterward  deeded  the  property  to  the  trustee 
on  full  payment  by  the  trustee  of  the  secured  debt;  that  the 
trustee  sold  part  of  the  land  for  the  full  amount  of  the  debt,  and 
yet  retained  the  balance  of  the  land.  The  bill  prayed  that  the 
deed  be  set  aside  and  for  an  accounting.  It  was  held  that  the 
petition  did  not  state  a  cause  of  action,  because  it  was  not  alleged 
that  there  was  any  surplus  to  which  the  plaintiff  Would  be  en- 
titled. The  cause  of  action  as  set  forth  was  not  that  the  plaint- 
iff was  to  be  permitted,  after  the  trustee's  sale,  to  find  a  purchaser 
for  a  portion  of  the  land  at  a  price  equal  to  the  whole  debt,  and 
was  then  to  be  given  a  right  of  redemption  as  to  the  balance.4 

§490.  15 ill  to  set  aside  fraudulent  conveyance. —  Where  a 
purchaser  at  an  execution  sale  seeks  to  set  aside  a  prior  deed 
executed  by  the  execution  debtor  on  the  ground  that  such  deed 
was  made  in  fraud  of  creditors,  the  petition  should  contain  an 
averment  that  the  execution  debtor  had  no  other  land  or  prop- 
erty subject  to  execution.5    He  must  also  allege  that  he  has  a 

1  Jamison  v.  Culligan,  151  Mo.  410.  4  Staples  v.  Shackleford,  150  Mo.  471. 

2  "Walters  v.  Herman,  99  Mo.  529.  5Bird  v.  Bolduc,  1  Mo.  701;  Page  v. 

3  Lipscomb  v.  New  York  Life  Ins.  Dixon,  59  Mo.  43. 
Co.,  138  Mo.  17.     Consult  §  487,  ante. 


§  491.]  KULES   APPLICABLE   TO   BILLS    IN    EQUITY.  259 

sheriff's  deed.1  In  a  bill  by  an  attaching  creditor  to  set  aside  a 
deed  alleged  to  be  fraudulent  as  to  creditors,  it  is  not  necessary 
to  aver  that  the  defendants,  against  whom  plaintiff  has  a  general 
judgment  and  a  judgment  and  levy  in  attachment,  are  insolvent, 
or  that  plaintiff  has  made  an  effort  to  collect  the  judgment  by  ex- 
ecution, or  that  he  has  no  remedy  at  law.2  If  the  suit  to  set  aside 
the  fraudulent  conveyance  is  brought  by  attaching  creditors,  the 
petition  must  show  the  existence  of  the  facts  specified  in  the  stat- 
ute, which  give  to  attaching  creditors  a  joint  right  to  sue  for 
that  purpose,  since  the  right  to  thus  proceed  jointly  is  not  allow- 
able at  common  law  or  in  equity,  and  is  exclusively  a  statutory 
right.  The  chief  one  of  these  facts  is  that  the  several  attachments 
were  levied  on  the  same  property.3  A  creditor's  bill  to  subject 
certain  funds  to  the  satisfaction  of  certain  judgments  rendered 
in  favor  of  plaintiff  is  good,  if  it  charges  that  M,  one  of  the  firm 
of  Y  and  M,  on  the  death  of  Y  administered  on  the  partnership 
estate;  that  at  that  time  the  firm  was  indebted  in  a  large  sum 
to  one  L;  that  M  applied  all  his  individual  means  to  the  pay- 
ment of  L's  debt,  and  on  final  distribution  of  the  partnership 
estate  procured  an  order  to  pay  forty-two  per  cent,  of  L's  debt 
out  of  the  firm  assets,  and,  with  intent  to  defraud  his  creditors 
and  to  cover  up  his  property,  paid  said  sum  of  forty-two  per 
cent,  to  L;  that  the  previous  payments  of  the  same  debts  by  M 
out  of  his  individual  property  rendered  M  insolvent,  and  that  the 
other  member  of  the  firm  is  insolvent.  It  is  not  necessary  that 
the  bill  should  in  terms  state  that  L  received  such  sum  in  order 
to  aid  M  in  defrauding  his  creditors,  now  that  L  had  any  notice 
of  the  intended  fraud,  since,  under  the  circumstances,  the  pay- 
ment to  L  out  of  the  firm's  assets  was  without  consideration,  and 
as  to  that  payment  he  occupied  the  position  of  a  volunteer;  M 
being  himself  largely  indebted  was  bound  to  pay  his  own  debts 
before  he  could  use  his  property  to  pay  the  firm  debts.4 

§  491.  Bill  for  specific  performance. —  In  a  bill  for  the  spe- 
cific performance  of  a  contract  to  convey  land,  it  is  not  necessary 
to  allege  that  the  contract  was  in  writing.5  Nor  need  the  plaintiff 
set  out  a  compliance  with  each  of  the  conditions  precedent  to  a 
recovery,  as  that  the  cash  payment  was  made  or  tendered,  or  that 

1  Hiney  v.  Thomas,  36  Mo.  377.  As  to  pleading  fraud  generally,  see 

*  Mansur  Imp.  Co.  v.  Jones,  143  Mo.  §§  151-160,  ante. 

253.  5  Wildbahn  v.  Robidoux,  11  Mo.  659; 

3Brumley  v.  Golden,  27  App.  160.  Young  Men's  Christian  Ass'n  v.  Du- 

4  Lyons  v.  Murray,  95  Mo.  23.  bach,  82  Mo.  475. 


260  the  petition.  [§§  492, 493. 

a  deed  of  trust  to  secure  the  deferred  payments  was  executed. 
But  the  petition  must  contain  an  allegation  that  plaintiff  has 
performed  all  of  the  conditions  of  the  contract  to  be  by  him  per- 
formed.1 

§  492.  Bill  for  subrogation.—  A  petition  in  a  proceeding  to 
enforce  the  right  of  subrogation  must  state  all  matters  and  facts 
which  give  rise  to  the  right  claimed.2 

§  493.  Bill  to  establish  rights  under  a  will. —  Plaintiffs  filed 
a  bill  to  establish  their  rights  as  pretermitted  heirs  under  a  will, 
it  not  being  the  object  of  the  bill  to  set  aside  the  will  or  attack 
it  in  any  way,  except  so  far  as  to  establish  plaintiff's  rights  in  the 
estate.  Therefore  an  allegation  in  the  petition  that  the  will  was 
the  result  of  undue  influence  on  the  part  of  one  of  the  defend- 
ants is  totally  irrelevant,  and  should  be  stricken  out.3 

1  Pomeroy  v.  Fullerton,  113  Mo.  440.        3  Banks  v.  Galbraith,  149  Ma  529. 

2  Clark  v.  First  National  Bank,  57 
App.  277. 


CHAPTER  XVII. 


EXHIBITS. 


494  The  statutory  provisions. 

495.  To  what  instruments  the  rule 

applies. 

496.  The  construction  of  the  stat- 

ute. 

497.  Where  the  action  is  founded 

upon  an  account. 

498.  Lost  instrument. 

499.  Not  necessary  to  recite  the  fil- 

ing. 

500.  Effect  of  failing  to  file  the  in- 

strument. 

501.  How  advantage  may  be  taken 

of  the  omission. 


§  502.  What  will  excuse  a  failure  to 
file  the  instrument. 

503.  Instrument  may  be  filed  at  any 

time  before  suit  is  dismissed. 

504.  Exhibit  not  a  part  of  the  rec- 

ord. 

505.  Same  —  In  case  of  tax-bills. 

506.  But  the  account  is. 

507.  Illustrations  of  the  foregoing 

rules. 

508.  Suit  by  stockholder. 

509.  Action  on  tax-bills. 

510.  Foreclosure  proceedings. 

511.  Proceedings  on  judgments. 


§  494.  The  statutory  provisions. —  "When  any  pleading  shall 
"be  founded  upon  an  instrument  of  writing  charged  to  have  been 
executed  by  the  other  party,  or  his  testator  or  intestate,  or  other 
person  represented  by  such  party,  and  not  therein  alleged  to  be 
lost  or  destroyed,  such  instrument,  or  a  copy  of  it  verified  by  the 
party's  affidavit,  shall  be  filed  with  the  pleading.  If  a  copy  is 
filed  the  court  may,  for  good  cause  shown,  require  the  production 
of  the  original  before  the  opposite  party  is  required  to  plead.1 


1  Rev.  Stat.  1899,  sec.  643.  The  above 
section  as  it  now  reads  has  been  in 
force  since  the  revision  of  1889,  in 
which  revision  it  was  section  2088. 
Prior  to  that  time  the  filing  of  a  copy 
was  not  allowable,  except  that  it  was 
customary  to  file  a  copy  when  the 
original  had  been  lost  or  destroyed,  or 
was  already  on  file  in  the  same  or 
some  other  court.  In  the  original 
practice  act  (Laws  1849,  art.  VII,  sec.  13, 
p.  82)  the  provision  was  that  if  either 
party  should  rely  upon  any  record, 
deed  or  other  writing,  he  must  file  with 
his  pleading   an  authenticated  copy 


of  such  record  and  the  original  deed 
or  other  writing,  if  in  his  power;  but 
if  he  could  not  produce  the  writing  he 
must  so  state  in  his  pleading,  together 
with  the  reasons  therefor,  and  if  the 
reasons  should  be  sufficient  he  might 
file  the  best  evidence  in  his  power  of 
the  contents  of  the  writing.  In  the 
revision  of  1855  the  section  was 
changed  so  as  to  read  substantially  as 
it  now  reads,  except  that  no  provision 
was  made  for  the  filing  of  a  copy.  In 
the  revision  of  1889  (sec.  2088)  the  pro- 
visions as  to  filing  a  verified  copy,  and 
giving  the  court  power  to  order  the 


exhibits.  [§  495. 

Shortly  after  the  adoption  of  the  practice  act  of  1S49  the  section 
in  question  received  a  judicial  interpretation  in  the  case  of  Sexton 
■r.  Monks?  in  which  case  it  is  said  that  there  is  no  warrant  in  the 
new  code  of  practice  for  the  idea  that  a  party  cannot  use  in  evi- 
dence a  paper  which  has  not  been  filed  in  the  court;  that  the 

1  ion  applies  only  to  cases  in  which  the  party  recites  his  title 
in  his  pleading,  or  to  a  case  in  which  a  record  is  recited  in  a 
pleading  as  confirming  or  barring  a  right.     "  Take  the  case  of  a 
suit  upon  a  note,"  says  Gamble,  J.,  "in  which  the  defendant 
answers  that  before  the  institution  of  the  suit  he  paid  the  debt. 
The  defense  in  such  a  case  is  the  fact  of  payment,  and  this  may 
be  shown  by  a  receipt  or  by  oral  evidence.     In  such  cases  a  re- 
ceipt, which  proves  the  fact  of  payment,  may  undoubtedly  be 
used  in  evidence  whether  it  was  filed  or  not.     The  party  does 
not  rely  on  the  writing  but  on  the  fact  of  payment."  (pp.  161, 162.) 
The  section  does  not  apply  to  an  action  for  specific  performance 
of  a  contract  in  writing  to  convey  land.     It  applies  to  actions 
grounded  on  instruments  in  writing  which  are  declared  upon 
as  such,  and  was  not  intended  to  abolish  the  rule  of  pleading 
which  authorizes  a  plaintiff  to  declare  upon  a  contract  which  at 
common  law  was  valid  though  resting  in  parol,  notwithstanding 
the  statute  now  requires  such  contract  to  be  in  writing.2     Since 
it  is  only  where  the  pleading  is  actually  founded  upon  the  instru- 
ment that  it  is  required  to  be  filed,  it  follows  that  if  a  party  ap- 
plies for  a  writ  of  mandamus  to  compel  the  county  treasurer  to 
pay  the  interest  coupons  on  bonds  issued  by  the  county,  such  pro- 
ceeding not  being  an  action  upon  the  coupons,  its  object  being 
to  obtain  an  order  commanding  the  treasurer  to  pay  them  when 
presented,  it  is  not  a  proceeding  in  which  the  coupons  must  be 
filed  as  exhibits.    And  such  seems  to  be  the  holding  of  the  courts.3 

§  495.  To  what  instruments  the  rule  applies.— Only  such 
papers  need  be  filed  as  are  executed  by  the  adverse  party.4  If 
the  instrument  is  signed  by  both  parties  it  need  not  be  filed.5 
On  the  same  principle  articles  of  association  or  subscription 
papers  are  not  required  to  be  filed.6    If  the  action  is  by  an  in- 

production  of  the  original,  were  in-  3  State  ex  reL  v.  Craig,  69  Mo.  565. 

serted  in  the  section,  making  it  read  4  Campbell  v.  Wolf,  33  Ma  459 ;  Carr 

as  section  643  now  reads.  v.  Waldron,  44  Mo.  393;   Bowling  v. 

1 16  Mo.  15a                                           !  Hax,  55  Mo.  446. 

2  Young  Men's  Christian  Ass'n  v.  5  Bowling  v.  Hax,  55  Ma  446;  Mo. 
Dubach,  82  Ma  475.  See  also  §  496,  Pac.  R.  Co.  v.  Atkinson,  17  App.  484. 
post.  6  Workman  v.  Campbell,  46  Mo.  305. 


§§  496,  497.]  exhibits.  263 

dorser  against  a  prior  indorser,  the  note  need  not  be  filed.1  In 
an  action  on  the  bond  of  an  administrator,  the  settlement  made 
by  him  showing  that  he  is  chargeable  with  the  amount  sued  for 
need  not  be  filed  with  the  petition.2 

§  496.  The  construction  of  the  statute, —  The  above  section 3 
is  to  have  a  reasonable  construction,  and  is  not  to  be  perverted 
so  as  to  produce  injustice,  or  to  be  made  to  apply  to  cases  which 
were  never  intended  to  be  comprehended  within  it.4  It  does  not 
require  a  party  to  file  with  his  pleading  all  his  documentary  evi- 
dence, nor  to  set  forth  every  link  in  his  chain  of  title.5  "Where 
an  action  is  brought  upon  a  contract  which  is  not  alleged  to  be 
in  writing,  if  defendant  files  a  general  denial  and  also  pleads  the 
statute  of  frauds,  and  the  plaintiff  in  his  reply  avers  that  the 
contract  was  in  writing,  and  files  a  copy  of  the  writing  as  an  ex- 
hibit, the  exhibit  is  properly  excluded  from  evidence,  because  it 
was  not  set  out  as  the  foundation  of  the  action.6  It  is  sufficient, 
however,  if  the  exhibit  is  filed  with  an  amended  petition.7  A 
failure  to  file  it  may  be  a  ground  for  demurrer;8  but  the  instru- 
ment itself  filed  as  an  exhibit  cannot  be  made  the  subject  of  a 
demurrer.9  If  one  party  files  a  copy  of  the  paper  as  an  exhibit, 
the  other  party  may  read  it  in  evidence.10 

§  497.  Where  the  action  is  founded  upon  an  account. —  It  is 
not  necessary  for  a  party  to  set  forth  in  his  pleading  the  items 
of  an  account  alleged  in  it,  but  if  they  are  not  set  forth  in  the 
pleading  itself  a  copy  of  the  account  must  be  attached  to  the 
pleading,  and  referred  to  therein,  and  such  copy  constitutes  a 
part  of  the  record.  If  the  items  of  the  account  are  not  set  forth 
in  the  pleading  or  attached  to  it,  the  party  cannot  give  evidence 
of  them.11  If  the  pleading  does  not  comply  with  the  above  re- 
quirement, the  other  party  may  either  move  to  have  it  made  more 
definite,  or  may  object  to  the  introduction  of  evidence  to  support 
it.12  And  in  such  case  the  admission  of  evidence  of  the  account 
over  the  objection  of  the  other  party  is  a  fatal  error.13     But  if  de- 

1  Jeffries  v.  Flint.  55  Mo.  29.  This  decision  is  not  reported  in  full. 

2  State  to  use  v.  Bartlett,  68  Mo.  581.    Compare  §  494,  note  2,  p.  262. 

That  a  written  contract  to  sell  land  7  State  ex  reL  v.  Miller,  16  App.  539. 

need  not  be  filed,  see  next  following  8  Dyer  v.  Murdoch,  38  Mo.  224. 

section.  9  Hall  v.  Harrison,  21  Mo.  227;  Curry 

3  Rev.  Stat.  1899,  sec.  643.  v.  Lackey,  35  Mo.  389. 

4  Workman  v.  Campbell,  46  Mo.  305;  ">  Barker  v.  Patchin,  56  Mo.  241. 
State  to  use  v.  Engelke,  6  App.  356.  »  Rev.  Stat.  1899.  sec.  630. 

5  Gitt  v.  Watson,  18  Mo.  274.  12  Lawson  v.  Quillen,  61  App.  672. 

6  Miller  v.  Grand  Grove,  9  App.  585.  13  Labadie  v.  Maguire,  6  App.  573. 


264  exhibits.  [§§498-500. 

fondant  goes  to  trial  without  insisting  on  having  an  itemized 
account,  he  will  bo  doomed  to  have  waived  his  right  to  it.1  It 
is  sufficient  if  the  above  section  is  substantially  complied  with, 
and  any  lack  of  particularity  will  be  cured  if  the  opposite  party 
fails  to  move  to  have  it  made  more  definite  and  certain.2  An 
account  is  sufficiently  itemized  if  it  sets  forth  the  items,  though 
the  exact  dates  are  not  set  opposite  each  item,  where  from  the 
nature  of  the  case  the  dates  are  given  as  near  as  may  be.3  Where 
the  action  is  for  materials  furnished  and  work  done  without  any 
special  contract  or  separate  price  for  any  of  the  items,  a  petition 
stating  the  time  and  place,  and  the  particulars  of  the  work  and 
labor,  is  sufficient,  though  it  does  not  contain,  nor  have  attached 
to  it,  an  account  stating  separately  the  price  or  value  of  each 
item.*  If  defendant  writes  upon  the  back  of  an  account  an 
agreement  to  assume  the  payment  of  it,  and  the  petition  is 
founded  upon  that  agreement,  plaintiff  need  not  set  forth  the 
items  of  the  account  nor  attach  them  to  his  petition.5 

§  408.  Lost  instrument. —  If  the  instrument  sued  on  is  lost 
after  the  suit  is  brought,  and  evidence  of  its  contents  is  given  at 
the  trial  without  objection,  it  is  immaterial  that  it  was  not  filed 
with  the  petition.6  If  the  exhibit  has  been  lost  from  the  files,  it 
is  proper  to  file  a  duplicate  copy.7 

§  409.  Not  necessary  to  recite  the  filing. —  If  the  instrument 
on  which  the  pleading  is  based  is  in  fact  filed,  it  is  not  necessary 
that  the  pleading  should  contain  any  statement  to  that  effect;  and 
though  the  words  "herewith  filed"  are  generally  used,  they  are 
not  necessary,  and  no  advantage  can  be  taken  of  their  omission.8 

§  500.  Effect  of  failing  to  ft!e  the  instrument. —  If  the  in- 
strument is  not  filed,  and  the  reason  for  not  filing  it  is  one  other 
than  the  statutory  one  of  its  loss  or  destruction,  a  demurrer  will 
lie;9  or  the  suit  may  be  dismissed,  even  after  an  answer  is  filed, 
as  the  defect  is  not  waived  by  failing  to  raise  the  objection  by 
demurrer  or  answer.10    But  it  is  too  late  to  make  the  objection 

1  Meyer  v.  McCabe,  73  Mo.  236.  Hannibal  &  St.  J.  R  Co.  v.  Knudson, 

2  Meyer  v.  Chambers,  68  Mo.  626.  62  Mo.  569. 

3  Girls' Industrial  Home  v.  Fritchey,  9Burdsall  v.  Davies,  58  Mo.  138; 
10  App.  344.  Hannibal  &  St.  J.  R.  Co.  v.  Knudson, 

*  Nelson  Mfg.  Co.  v.  Mitchel,  38  App.  62  Mo.  569;  Hook  v.  Murdoch,  38  Mo. 

321.  224 

s  Meyer  v.  Lowell,  44  Mo.  328.  WRothwell  v.  Morgan,  37  Mo.    107. 

6  State  to  use  v.  Smit,  20  App.  50.  That  this  does  not  apply  to  an  account 

7  Dutro  v.  Walker,  31  Mo.  516.  see  ante,  %  497. 
sBurdsall    v.    Davies,    58  Mo.    138; 


§§  501,  502.]  exhibits.  2G5 

after  a  trial  has  been  had,  and  no  objection  was  made  either  by 
demurrer  or  answer,  or  by  objecting  to  evidence  at  the  trial.1 
If  the  answer  admits  the  execution  of  the  instrument,  it  is  im- 
material that  it  was  not  filed  with  the  petition.2 

§  501.  How  advantage  may  be  taken  of  tlie  omission. — 
While  a  demurrer  will  lie  if  a  reason  is  given  for  failing  to  file 
the  instrument,  and  such  reason  is  not  the  statutory  one,  yet  if 
there  is  a  failure  to  file  the  instrument,  but  no  reason  is  given  for 
such  failure,  a  demurrer  will  not  lie;  the  remedy  is  by  motion 
to  dismiss  or  to  require  the  party  to  compty  with  the  statute  by 
filing  the  instrument.3  In  that  case  advantage  cannot  be  taken 
of  the  omission  by  objecting  to  the  evidence  nor  by  filing  a  mo- 
tion in  arrest,  provided  the  petition  of  itself,  and  without  the  aid 
of  the  exhibit,  states  facts  sufficient  to  constitute  a  cause  of  ac- 
tion.4 In  a  proceeding  to  foreclose  a  mortgage,  if  the  mortgage 
filed  with  the  petition  shows  that  it  was  given  to  secure  certain 
notes  of  defendant,  but  plaintiff  does  not  file  such  notes  with  the 
petition,  it  is  proper  for  defendant  in  his  answer  to  set  up  the 
fact  that  the  mortgage  was  given  to  secure  such  notes,  and 
then  after  filing  the  answer  move  for  a  dismissal  of  the  action 
upon  the  ground  of  pLaintiffs  failure  to  file  them.5  If  the  mort- 
gage is  given  in  evidence  at  the  trial,  the  court  is  bound  to  take 
notice  that  it  was  given  to  secure  promissory  notes;  and  if  de- 
fendant then  asks  for  a  dismissal  of  the  case  upon  the  ground 
that  the  notes  were  not  filed,  the  motion  should  be  granted.6 
The  failure  to  file  the  exhibit  is  no  ground  for  reversing  the 
judgment;  the  objection  should  be  raised  by  motion  to  dismiss 
for  failure  to  file  it.7 

§  502.  What  will  excuse  a  failure  to  file  the  instrument. — 
The  provision  as  to  filing  a  verified  copy  of  the  instrument  ap- 
pears for  the  first  time  in  the  revision  of  1889.8  Under  the  stat- 
ute in  force  prior  to  that  time  it  was  held  that,  where  the  bond 
sued  on  was  on  file  in  another  court,  it  was  not  necessary  to  file  a 
copy.9    The  fact  that  the  note  upon  which  the  action  is  founded 

iBurdsall   v.    Davies,  58    Mo.   138;  «Id. 

White  v.  Stevens,  13  App.  240;  Fen-  t  Rothschild  v.  Lynch,  76  App.  339. 

wick  v.  Bowling,  50  App.  516.    See,  8  See  ante,  §  494,  n.  1. 

however,  next  succeeding  section.  9  State  to  use  v.  Engelke,  6  App.  356. 

2Cummings  v.  Kohn,  12  App.  585.  In  his  opinion  Hayden,  J.,  says:  "The 

3  Hannibal  &  St.  J.  R.  Co.  v.  Knud-  statute  has  reference  to  the  rule  of 
son.  ()2  Mo.  569.  common-law  pleading,  which  did  not 

4  State  ex  rel.  v.  Eldridge,  65  Mo.  584.  require  profert  or  permit  oyer  when 

5  Pharis  v.  Surrett,  54  App.  9.  the  necessary  deed  was  lost  or  de- 


EXHIBITS.  ,      [§§  503,  504. 

is  held  by  a  third  party  is  no  excuse  for  a  failure  to  file  it.1  If 
defendant  has  improperly  obtained  possession  of  the  note  and 
has  detained  it  and  defaced  it,  he  cannot  object  that  it  is  not 
filed  with  the  petition.2  In  an  action  on  a  policy  of  insurance 
plaintiff  failed  to  file  the  policy  with  his  petition,  or  to  assign 
any  reason  for  not  doing  so.  Upon  defendant  filing  a  motion  to 
dismiss,  plaintiff  sought  to  excuse  his  failure  to  file  the  policy  on 
unds  not  set  up  in  the  petition,  namely,  that  the  application 
signed  by  plaintiff  was  a  part  of  the  policy,  and  therefore  the 
instrument  actually  sued  upon  was  signed  by  both  parties  and 
was  not  required  to  be  filed.  It  was  held  that  the  motion  to 
dismiss  should  have  been  granted,  since  the  court  can  look  only 
to  the  petition  and  the  instrument  filed  with  it,  and,  if  the  instru- 
ment is  not  filed,  it  can  consider  only  such  reasons  for  the  omis- 
sion as  are  shown  in  the  petition  itself.3 

§  503.  Instrument  may  be  filed  at  any  time  before  suit  is 
dismissed. —  If  a  motion  is  filed  to  dismiss  an  action  on  the 
ground  that  the  instrument  sued  on  is  not  filed  with  the  petition, 
it  should  be  overruled  if  the  instrument  is  filed  during  its  pend- 
ency.4 And  if  plaintiff  fails  to  file  the  exhibit  at  the  time  of 
filing  his  petition,  but  does  file  it  a  few  days  before  the  trial,  he 
may  read  it  in  evidence  after  due  proof  of  its  execution.5 

§  504.  Exhibit  not  a  part  of  the  record. —  It  has  been  re- 
peatedly held  by  the  courts  of  this  state  that  an  instrument  filed 
with  a  pleading  does  not  become  a  part  of  the  pleading,  nor  is  it 
a  part  of  the  record;  and  the  exhibit  cannot  be  considered  in  de- 
termining the  sufficiency  of  the  pleading  when  attacked  by  a 
demurrer.6  The  exhibit  cannot  be  used  to  support  the  petition  on 
a  motion  in  arrest.7    Where  a  note  as  set  forth  in  the  petition 

stroyed,  but  allowed  issue  to  be  taken  2  Bank  of  Commerce  v.  Hoeber,  8 

as  to  the  fact  alleged  as  an  excuse  for  App.  171. 

not  making  profert.     When  the  in-  3McHoney  v.  German  Ins.  Co.,  37 

strument  was    neither  lost  nor    de-  App.  218.     But  see  opinion  on  motion 

stroyed,  but  was  in  the  nature  of  a  for  rehearing  (p.  220). 

record,  other  rules  prevailed;  and  of  4  Foster  v.  Atlantic  &  Pacific  R.  Co., 

a  record  proper  oyer  was  not  demand-  1  App.  300 ;  State  to  use  v.  Engelke,  6 

able"  (p.  350).     I  may  add  that  in  the  App.  356. 

St  Louis  courts  it  has  always  been  5  Rothschild  v.  Lynch,  76  App.  339. 

customary  in  such  cases  to  file  a  certi-  6  Among  the  latest  of  the  cases  an- 

fied  copy;   and,  I  think,  the  custom  nouncing  this  rule  are  Pomeroy  v. 

prevails    to    a    considerable    extent  Fullerton,  113  Mo.  440,  and  Hickory 

throughout  the  state.  County  v.  Fugate,  143  Mo.  71.     See 

1  Dyer  v.  Murdoch,  38  Mo.  224.  also  §  502,  n.  3,  this  page. 

7  Bowling  v.  McFarland,  38  Mo.  465. 


§§  505-507.]  exhibits.  267 

called  for  only  simple  interest,  a  judgment  for  the  note  with  com- 
pound interest  is  erroneous,  though  the  note  in  fact  called  for 
compound  interest.1  The  instrument  filed  with  the  pleading  can- 
not be  made  the  subject  of  demurrer,2  though  a  failure  to  file  it 
may  be  a  ground  of  demurrer.3 

§  505.  Same  —  In  case  of  tax-bills. —  Section  9303 4  provides 
that  in  actions  upon  tax-bills  brought  in  the  name  of  the  state 
at  the  relation  of  the  collector,  certain  facts  shall  be  set  forth 
in  the  tax-bill  sued  on,  which  tax-bill  shall  be  duly  authenti- 
cated by  the  certificate  of  the  collector  and  filed  with  the  peti- 
tion. But  this  provision  does  not  make  the  tax-bill  a  part  of  the 
petition,  and  it  is  to  be  regarded  as  a  matter  of  evidence  and 
not  of  pleading.5  It  is  the  petition  and  not  the  tax-bill  which 
contains  the  cause  of  action,  and  a  motion  to  dismiss  because  of 
alleged  defects  in  the  tax-bill  should  be  overruled,  though  de- 
fects in  the  tax-bill  would  be  a  good  reason  for  rejecting  it  as 
evidence.6  If  the  petition  contains  no  description  of  the  land 
sought  to  be  affected  by  the  tax-bill,  though  the  tax-bill  filed 
with  the  petition  does  contain  such  description,  the  judgment  is 
void  and  open  to  collateral  attack.  And  of  course  the  objection 
to  it  is  good  upon  demurrer  and  in  arrest  of  judgment.7 

§  506.  But  the  account  is  a  part  of  the  record. —  An  account 
set  forth  in  conformity  with  section  630,8  or  attached  to  the 
pleading,  is  by  the  express  terms  of  the  statute  made  a  part  of 
the  record.9 

§  507.  Illustrations  of  the  foregoing  rules. —  In  a  bill  filed 
for  a  partnership  settlement,  where  the  plaintiff  kept  all  the  ac- 
counts of  the  partnership,  the  petition  must  contain  an  exhibit 
of  the  partnership  transactions.10  If  the  action  is  based  on  a 
note  which  is  filed  with  the  petition,  the  fact  that  an  account 
composed  of  various  items  constituted  the  consideration  for  the 
note,  and  that  the  note  was  payable  only  to  the  extent  of  such 
account,  does  not  render  it  necessary  to  file  the  account  with  the 
petition  or  set  it  forth  therein.11     Thus,  where  the  note  bore  the 

>  Poulson  t.  Collier,  18  App.  583.  ^Hassett  v.  Rust,  64  Mo.  325;  Con- 

2  Hall  v.  Harrison.  21  Mo.  227;  Curry  nor  v.  Heman,  44  App.  346;  Coombs 
v.  Lackey,  35  Mo.  389.  Com.  Co.  v.  Block,  130  Mo.  668. 

3  Dyer  v.  Murdoch,  38  Mo.  224.  w  Scott  v.  Caruth,   50  Mo.  120.     In 

4  Rev.  Stat.  1899.  this  case  the  term  "  exhibit "  is  not 

5  Vaughan  v.  Daniels,  98  Mo.  230.         used    in   its  technical    sense,   but  is 
6 State  ex  rel.  v.  Rau,  93  Mo.  120.  equivalent  to  "statement." 

t Vaughan  v.  Daniels,  98  Mo.  230.       "Low  v.  Taylor,  41  App.  517.     This 
See  also  §  509,  post.  principle  is  also  recognized  in  Meyer 

8  Rev.  Stat.  1899.  v.  Lowell,  44  Mo.  328. 


EXHIBITS.  [§§  508-511. 

following  indorsement :  "This  note  is  made  for  the  purpose  of 
obtaining  credit,  and  is  held  as  security  for  any  overdraft,  and 
payable  only  to  the  extent  of  such  overdraft,"  it  is  not  necessary 
to  file  with  the  petition  an  account  showing  the  items  of  the 
overdraft.1  An  action  was  brought  for  the  price  of  certain  ar- 
ticles manufactured  for  defendant,  some  of  which  defendant  had 
ordered  in  writing  and  the  others  verbally,  and  an  itemized  ac- 
count of  the  whole  was  filed  with  the  petition.  It  was  held  that 
this  was  not  a  suit  founded  upon  an  instrument  of  writing,  and 
it  was  not  necessary  that  the  written  orders  should  be  filed  with 
the  petition.2 

§  508.  Suit  by  stockholder. —  "Where  a  stockholder  of  a  build- 
ing and  loan  association  files  a  bill  against  the  directors  of  the 
corporation  to  restrain  them  from  closing  out  a  series  of  shares 
before  their  maturity,  he  need  not  file  his  certificate  of  stock  or 
a  copy  of  it.3 

§  509.  Action  on  tax-bills. —  Where  the  law  required  the 
county  clerk  to  issue  certificates  showing  the  amount  of  taxes 
due  from  a  railroad  company  to  the  county,  it  is  not  necessary 
in  an  action  to  recover  the  tax-bills  issued  against  such  railroad 
company  to  file  such  certificates,  since  they  are  only  evidence  of 
the  assessment  and  levy  of  the  taxes,  and  are  not  the  foundation 
of  the  suit.4 

§  510.  Foreclosure  proceeding. —  If  in  a  proceeding  to  fore- 
close a  mortgage  the  plaintiff  fails  to  file  with  his  petition  the 
secured  notes,  the  bill  should  be  dismissed,  though  the  mortgage 
itself  is  filed.5  If  the  defendant  fails  to  avail  himself  of  the  omis- 
sion by  filing  his  motion  to  dismiss  on  that  account,  he  is  never- 
theless entitled  to  the  production  of  the  notes  at  the  trial,  and  a 
decree  of  foreclosure  should  not  be  rendered  unless  they  are  pro- 
duced, or  their  absence  is  properly  accounted  for.6 

§  511.  Proceedings  on  judgments. —  Where  a  bill  is  filed  to 
enjoin  the  collection  of  a  judgment,  the  transcript  of  the  judg- 
ment must  be  filed  as  an  exhibit.7  But  where  an  action  is  brought 
on  a  foreign  judgment,  the  record  of  such  judgment  need  not  be 
filed.8 

i  Low  v.  Taylor,  41  App.  517.  7  Parsons  v.  Wilkerson,  10  Mo.  713. 

2  Kingsland  Mfg.  Co.  v.  St.  Louis  The  court  of  appeals  declines  to  follow 
Malleable  Iron  Co.,  21  App.  526.  this  decision,  though  the  point  was 

3  Fisher  v.  Patton,  134  Mo.  32.  urged  by  appellant.    Smith  v.  Taylor, 

4  Kansas  City  v.  Hannibal  &  St.  J.    78  App.  630. 

R.  Co.,  81  Mo.  285.    See  §  505,  ante.  8Omahundro  v.  Clarkson,  13  App. 

5  Pharis  v.  Surrett,  54  App.  9.  533. 
e  Id. 


CHAPTER  XVIII. 


DEFENDANT'S  PLEADINGS. 


§  512.  He  must  either  demur  or  an- 
swer. 
513.  Waiver  by  failure  to  demur  or 
answer. 


§  514  Same  —  Misjoinder   of  parties 
or  causes. 
515.  Same  —  Capacity  or  character 
of  plaintiff. 


§  512.  He  must  either  demur  or  answer. —  The  only  plead- 
ing on  the  part  of  the  defendant  is  either  a  demurrer  or  an  answer.1 
Most  of  the  questions  arising  on  this  section  of  the  statute  and 
those  immediately  succeeding  it  will  be  discussed  in  the  chapters 
on  The  Answer 2  and  in  that  on  The  Demurrer.3  I  shall  here 
only  briefly  indicate  one  or  two  important  points  connected  with 
pleading  by  the  defendant.  Under  the  common  law  a  demurrer 
was  not  generally  regarded  as  strictly  a  pleading,  but  rather  as 
an  excuse  for  not  pleading.  But  it  is  by  the  above  section  recog- 
nized and  classed  as  a  pleading  under  the  code  system.4  A  party 
cannot  at  the  same  time  raise  an  issue  of  law  and  one  of  fact 
going  to  the  entire  pleading  of  the  adverse  party;  by  raising  the 
issue  of  fact  he  waives  that  of  law.5  Therefore  a  defendant  can- 
not at  the  same  time  answer  the  entire  petition  and  demur  to  it 
for  a  misjoinder  of  parties.6  If  a  demurrer  is  filed  and  not  dis- 
posed of,  and  an  answer  is  afterwards  filed  and  the  cause  goes  to 
trial,  this  amounts  to  a  waiver  of  the  demurrer.7  Where  an  an- 
swer and  a  motion  to  dismiss  are  filed  at  the  same  time,  the  an- 
swer will  be  held  to  waive  the  motion  to  dismiss.8 

§  513.  Waiver  by  failure  to  demur  or  answer.— If  any  of 
the  matters  enumerated  in  section  598 9  as  grounds  of  a  demurrer 
do  not  appear  upon  the  face  of  the  petition,  objection  may  be 


iRev.  Stat.  1899,  sec.  596.  Notwith- 
standing the  positive  terms  of  the 
statute,  there  are  certain  motions 
open  to  the  defendant,  which,  while 
perhaps  not  strictly  pleadings,  yet 
take  the  place  of  a  demurrer  and 
operate  to  suspend  the  necessity  of 
answering.  (Consult  chs.  XXXI, 
XXXII  and  XXXVL) 


2  Chs.  XIX,  XX  and  XXIIL 
s  Ch.  XXXII. 

4  Barton  v.  Martin,  54  App.  134. 

5  Taber  v.  Wilson,  34  App.  89. 

6  Donahue  v.  Bragg,  49  App.  273. 

1  Dunklin  County  v.  Clark,  51  Mo.  60. 

8  Hite  v.  Hunton,  20  Mo.  286. 

9  Rev.  Stat.  1899. 


270  defendant's  pleadings.  [§514. 

taken  by  answer;  but  if  not  taken  either  by  demurrer  or  answer 
such  objections  are  waived,  except  the  objection  to  the  jurisdic- 
tion of  the  court  over  the  subject-matter,  and  the  objection  that 
the  pleading  docs  not  state  facts  sufficient  to  constitute  a  cause 
of  action  or  defense.1  All  objections  to  merely  formal  defects 
arc  waived  by  pleading  to  the  merits  and  are  cured  by  verdict.2 
The  objection  that  the  petition  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action  is  not  waived  by  a  failure  to  raise  it 
by  demurrer  or  answer;  it  may  be  raised  at  the  trial  by  an  ob- 
jection to  the  introduction  of  all  evidence,  or  it  may  be  made  in 
the  motion  for  a  new  trial,3  and  may  even  be  raised  for  the 
first  time  in  the  appellate  court.4  But  an  objection  made  for  the 
first  time  at  the  trial  that  the  petition  does  not  state  a  cause  of 
action  will  not  be  sustained,  unless  the  petition  is  so  fatally  de- 
fective that  a  motion  in  arrest  would  lie.5  If  the  petition,  how- 
ever inartificially  drawn,  do  but  state  a  cause  of  action,  and  no 
objection  is  taken  to  the  formal  sufficiency  of  its  allegations 
either  by  demurrer  or  answer,  all  such  objections  will  be  consid- 
ered waived.6  Defendant  waives  the  objection  that  the  contract 
sued  on  is  within  the  statute  of  frauds,  if  he  fails  to  make  it  by 
demurrer  or  answer.7 

§514.  Same  —  Misjoinder  of  parties  or  causes. —  The  objec- 
tion to  a  misjoinder  or  non-joinder  of  parties  is  waived  unless 
taken  by  demurrer  or  answer.8  If  it  is  claimed  that  there  are 
other  persons  who  should  have  been  joined  as  plaintiffs,  defendant 
must  raise  the  point  by  demurrer  or  answer.9  So,  too,  if  parties 
are  improperly  made  defendants.10  A  misjoinder  of  causes  of  ac- 
tion is  likewise  waived  unless  taken  advantage  of  by  demurrer 
or  answer.11  And  so  is  the  objection  that  there  is  both  a  mis- 
joinder of  parties  plaintiff  and  of  causes  of  action.12  Where  two 
causes  of  action  are  united  in  the  same  petition,  one  against  one 
of  the  defendants  and  the  other  against  the  remaining  defend- 
ants, thus  making  the  petition  multifarious,  the  objection  cannot 

1  Rev.  Stat.  1899,  sec.  602  with  sec.  5  Sackman  v.  Sackman,  143  Mo.  576. 

609;  Dobson  v.  Winner,  26  App.  329.  6  Pomeroy  v.  Benton,  57  Mo.  531. 

See  note  1  on  preceding  page.  7  Donaldson  v.  Newman,  9  App.  235. 

-Nicholson  v.  Golden,  27  App.  132;  8Leucke  v.  Tredway,  45  App.  507; 

Ryors  v.  Pryor,  31  App.  555.  Crenshaw  v.  TJllrnan,  113  Mo.  633. 

3  Andrews   v.   Lynch,   27  Mo.   167;  9  Pike  v.  Martindale,  91  Mo.  268. 

Syme  v.  Steamboat  Indiana,  28  Mo.  10  Lyne  v.  Marcus,  1  Mo.  410. 

335;  Ivory  v.  Carlin,  30  Mo.  142.  "  Hoyle  v.  Farquharson,  80  Mo.  377. 

*  Pelz  v.  Eichele,  62  Mo.  171;  Wilson  u  Anderson  v.  McPike,  41  App.  328; 

v.  Hart,  98  Mo.  618.  Rothschild  v.  Lynch,  76  App.  339. 


§  515.]  defendant's  pleadings.  271 

be  taken  by  a  motion  in  arrest,  but  must  be  raised  by  demurrer 
or  answer.1  The  objection  that  a  cause  of  action  ex  delicto  is 
joined  with  one  ex  contractu  must  be  raised  in  the  same  manner.2 
But  it  is  held  by  the  supreme  court  that  such  a  misjoinder  is  not 
waived  if  the  point  is  raised  before  verdict;  if  a  motion  is  made 
at  the  close  of  plaintiff's  evidence  to  compel  him  to  elect,  it  is  not 
too  late.3 

§515.  Same  —  Capacity  or  character  of  plaintiff. —  If  no 
question  is  raised  either  by  demurrer  or  answer  as  to  the  capac- 
ity of  plaintiff  to  maintain  the  action,  the  question  is  waived.4 
So  is  the  objection  that  the  petition  fails  to  aver  the  representa- 
tive character  of  plaintiff;5  and  the  defect  that  an  infant  sues 
without  the  appointment  of  a  next  friend.6  And  the  same  rule 
applies  to  a  curator.7 

1  Mead  v.  Brown,  65  Mo.  552.  6  Jones  v.  Steele,  36  Mo.  324;  Rogers 

2  Sumner  v.  Tuck,  10  App.  269.  v.  Marsh,  73  Mo.  64;  Taylor  v.  Pullen, 

3  Southworth  Company  v.  Lamb,  82    152  Mo.  434. 

Mo.  242.    The  ground  of  this  decision  7  Reynolds'  Appeal,  70  App.  576. 

is  that  such  a  motion  amounts  to  a  de-  The  question  what  objections  must 

murrer.  be  taken  by  demurrer,  and  what  are 

4  Graham  v.  Allison,  24  App.  516;  waived  by  answering  over,  is  fully  dis- 
Benne  v.  Schnecke,  100  Mo.  250.  cussed  in  the  chapter  on  The  Demur- 

s  Fuggle  v.  Hobbs,  42  Mo.  537.  rer  (oh.  XXXII). 


CHAPTER  XIX. 


THE  ANSWER 


§516. 

•     517. 

51a 

519. 
520. 

521. 

522. 
523. 

524. 
525. 


Entitling. 

When  an  answer  is  required. 

Answer  or  demurrer. 

Where  there  are  several  defend- 
ants. 

One  defendant  seeking  relief 
against  another. 

Requisites  of  answer. 

Sufficiency  of  answer. 

What  averments  are  to  be  trav- 
ersed. 

Answer  to  amended  petition. 

Supplemental  answer. 


526.  Several  defenses. 

527.  Must  be  consistent  with  each 

other. 

528.  Decisions  illustrating  the  rule 

as  to  consistent  defenses. 

529.  Same — The  defense  of  payment 

joined  with  other  defenses. 

530.  Further  illustrations  of  the  rule 

as  to  consistent  defenses. 

536.  Equitable  defenses. 

537.  Same  —  Decisions  illustrating 

the  doctrine. 


§  516.  Entitling. —  It  is  not  necessary  that  the  answer  should 
be  entitled ;  *  nor  need  the  venue  be  stated.2 

§  517.  When  answer  is  required. —  A  pleading  of  any  kind 
or  a  motion  to  strike  out  is  deemed  responsive  to  the  adverse 
pleading  or  so  much  thereof  as  the  pleading  or  motion  is  intended 
to  apply  to,  until  otherwise  determined  by  the  court.3  Several 
pleadings  cannot  be  applied  to  the  same  part  of  the  pleading  at 
the  same  time.4  A  motion  going  to  the  merits  of  the  petition 
will  dispense  with  the  necessity  of  answering  until  such  motion 
is  disposed  of,  unless  the  motion  is  clearly  frivolous.5  But  only 
such  motions  as  go  to  the  merits  dispense  with  the  necessity  of 
answering;  therefore  the  pendency  of  a  motion  for  security  for 
costs  will  not  prevent  a  judgment  for  want  of  an  answer.15  After 
a  judgment  by  default  has  been  rendered,  it  is  irregular  to  allow 
defendant  to  plead  until  such  default  has  been  set  aside.7 


i  Mattingby  v.  Cline,  7  Mo.  499. 

2  Rev.  Stat,  1899,  sec.  620. 

» Rev.  Stat.  1899,  sec.  625.  This  must 
be  taken  in  connection  with  section 
596,  which  provides  that  the  only 
pleading  on  the  part  of  the  defendant 
is  a  demurrer  or  an  answer.  For  a 
fuller  consideration  of  motions  which 


take  the  place  of  a  demurrer,  or  which 
suspend  the  necessity  of  answering, 
consult  chapters  XXXI,  XXXII  and 
XXXVL 

4  Rev.  Stat.  1899,  sec.  625. 

s  Hill  v.  Meyer,  47  Mo.  585. 

6  Fears  v.  Riley,  148  Mo.  49. 

"  Hickman  v.  Barnes,  1  Mo.  156.    The 


§§  518-520.]  THE   ANSWER.  273 

§  518.  Answer  or  demurrer. —  Defendant  may  demur  to  one 
part  of  the  petition  and  answer  to  another,  though  he  cannot  do 
both  at  the  same  time  in  the  same  pleading.1  Section  59S2  pro- 
vides that  the  defendant  may  demur  to  the  petition  when  the 
defects  mentioned  in  the  section  appear  upon  the  face  of  the  peti- 
tion. Section  602 2  provides  that  when  any  of  the  defects  speci- 
fied in  section  598  do  not  appear  upon  the  face  of  the  petition, 
the  objection  may  be  taken  by  answer,  but  unless  taken  by  de- 
murrer or  answer  such  defects  will  be  waived.  In  interpreting 
these  two  sections  it  is  held  that  while  section  598  will  permit  a 
demurrer  to  a  petition  where  the  want  of  jurisdiction  appears 
upon  its  face,3  it  does  not  require  the  question  to  be  raised  in  that 
manner  exclusively.  It  is  said  that  such  a  construction  of  the 
two  sections  is  narrower  and  more  stringent  than  the  courts  of 
ITissouri  have  ever  placed  upon  them,  and  that  the  question  may 
be  raised  by  answer,  even  though  the  want  of  jurisdiction  does 
appear  upon  the  face  of  the  petition.4  If  an  answer  is  filed,  but 
the  case  afterwards  goes  off  on  a  demurrer  without  any  notice 
being  taken  of  the  answer,  this  amounts  to  a  withdrawal  of  the 
answer.5 

§  519.  Where  there  are  several  defendants.—  If  two  or  more 
defendants  make  the  same  defense  they  must  answer  jointly.6  In 
a  case  where  there  were  several  defendants,  the  answer  of  one 
defendant,  which  was  a  general  denial,  was  improperly  stricken 
out;  but  it  was  held  that  the  error  was  immaterial,  if  the  gen- 
eral denial  of  another  defendant  remained  on  file,  and  the  whole 
case  was  tried  upon  the  issues  made  by  the  answers.7 

§  520.  One  defendant  seeking  relief  against  another.— "Where 
one  defendant  seeks  affirmative  relief  against  a  co-defendant,  it 
has  been  held  that  it  is  not  necessary  to  issue  new  process  against 
such  co-defendant,  but  the  same  time  ought  to  be  allowed  such 
co-defendant  to  answer  as  to  the  relief  sought  as  is  given  for  an- 
swering the  original  petition.8 

statutory  provisions  as  to  the  time  for  5  Dunklin  County  v.  Clark,  51  Mo.  60. 

filing  answers  and  other  pleadings  are  6  Rev.  Stat.  1899,  sec.  806. 

considered  in  chapter  IIL     See  §  45  i  O'Brien  v.  Hanson,  9  App.  545. 

etseq.  » Tucker  v.  St.  Louis  Life  Ins.  Co., 

i  Taber  v.  Wilson,  34  App.  89.     See  63  Mo.  588.     For  a  discussion  of  the 

note  2  on  preceding  page.  circumstances  under  which  one  de- 

2  Rev.  Stat.  1899.  fendant  may  obtain  relief  against  an- 

3  See  first  subdivision  of  the  section,  other,  see  ch.  II,  §§  30-33. 

4  Johnson  v.  Detrick,  152  Mo.  243. 

Mo.  Code  Pl.—  18 


274  the  answer.  [§§  521,  522. 

§  521.  Requisites  of  answer.  — The  statute  provides  that  the 
answer  shall  contain,  first,  a  general  or  specific  denial  of  each 
material  allegation  of  the  petition  controverted  by  the  defend- 
ant, or  any  knowledge  or  information  thereof  sufficient  to  form 
a  belief;  second,  a  statement  of  any  new  matter  constituting  a 
defense  or  counter-claim  in  ordinary  and  concise  language  with- 
out repetition.2  But  one  answer  is  allowable,  and  that  must  con- 
tain all  the  defenses  the  party  has,  no  matter  what  their  nature, 
whether  in  abatement  or  in  bar.3 

§  522.  Sufficiency  of  answer. —  The  answer  is  sufficient  if  it 
is  reasonably  explicit,  and  fully  apprises  the  opposite  party  of 
the  objection  made.4  If  the  matters  set  forth  in  the  answer  are 
such  that,  if  true,  they  present  no  defense  to  the  action,  the  an- 
swer is  in  effect  no  answer,  and  may  be  stricken  out.5  It  is  not 
essential  that  any  particular  fact  averred  in  the  answer  should 
either  by  itself,  or  when  taken  in  connection  with  the  other  aver- 
ments of  the  answer,  state  a  defense  to  the  action  at  law,  or  even 
should  constitute  an  equitable  defense,  provided  that  it  avers  a 
fact  which  it  is  proper  for  the  court  to  consider,  together  with 
other  circumstances,  in  determining  whether  or  not  the  relief 
prayed  by  plaintiff,  or  any  part  of  such  relief,  should  be  granted 
or  refused.6  The  central  idea  of  code  pleading  is  that  the  an- 
swer shall  not  be  evasive,  but  shall  meet  the  allegations  of  the 
petition  fairly  and  squarely,  and  present  sharply-defined  issues 
to  be  passed  upon  by  the  triers  of  the  facts.  Plaintiff  is  not  to 
be  compelled  to  carefully  sift  each  denial  of  the  answer,  and  to 
carefully  compare  it  with  each  paragraph  of  the  petition,  in  order 
to  see  what  is  admitted  and  what  is  denied.  And  whether  the 
denial  is  general  or  special,  it  must  be  such  that  the  issue  is  not 
left  to  surmise  or  conjecture.7  An  answer  which  neither  admits 
nor  denies  the  making  of  the  contract  set  up  in  the  petition  is 
evasive  and  maybe  stricken  out.8     Where  two  covenants  are  in- 

1  Since  the  same  principles  govern,    XX;  the  subject  of  counter-claim  in 

lie  same  rules  are  applicable  to  ch.  XXIV. 

both  an  answer  to  a  petition  and  a  3  State  ex  rel.  v.  Vallins,  140  Mo. 

reply  to  the  new  matter  set  up  in  the  523.     Consult,  in  this  connection,  ch. 

answer,  I  shall,  under  the   head  of  XXVII. 

Requisites  of  a  Good  Answer,  cite  a  4  Fassett  v.  Fassett,  41  Mo.  516. 

number  of  cases  which,  strictly  speak-  5  North  v.  Nelson,  21  Mo.  3G0. 

ing,  involve  the  traverse  of  new  mat-  u  Ridgeway  v.  Herbert,  150  Mo.  006. 

ter  contained  in  an  answer.  7  Snyder  v.  Free,  114  Mo.  360. 

2  Rev.  Stat.  1899,  sec.  604.    The  sub-  8  Miller  v.  Chicago  &  Alton  R  Co., 
ject  of  the  denial  is  treated  of  in  ch.  62  App.  252. 


§§  523-526.]  the  answer.  2T5 

dependent,  and  have  no  reference  to  each  other,  the  averment  of 
the  performance  of  one  of  them,  where  the  action  is  based  upon 
the  other,  will  be  considered  immaterial,  and  an  answer  denying 
the  performance  of  the  immaterial  covenant  is  demurrable.1 

§  523.  What  averments  are  to  be  traversed. —  Defendant  is 
bound  to  plead  only  to  the  substantive  facts  alleged  in  the  peti- 
tion and  not  to  mere  matters  of  evidence.2  But  the  petition  may 
be  so  shaped  as  to  make  that  material  and  necessary  to  be  trav- 
ersed which  otherwise  would  not  be.3  Defendant  cannot  avail 
himself  at  the  trial  of  a  defense  which  he  has  not  pleaded.4  But 
the  fact  that  an  answer  is  drawn  too  broadly  does  not  require 
the  defendant  to  offer  proof  as  broad  as  the  allegations  of  the 
answer.  It  is  sufficient  if  he  proves  enough  of  the  facts  pleaded 
to  constitute  a  good  defense  to  the  cause  of  action  stated  in  the 
petition.5  While  the  existence  of  jurisdiction  maybe  pleaded  in 
general  terms,6  yet  where  it  is  intended  by  answer  to  raise  the 
question  of  the  jurisdiction  of  a  court  or  officer,  it  is  not  suffi- 
cient to  allege  that  the  court  or  officer  did  not  have  jurisdiction, 
or  that  the  summons  or  service  was  defective;  the  pleading  must 
set  out  the  facts  showing  the  lack  of  jurisdiction  and  the  insuffi- 
ciency of  the  summons  or  service.7 

§  521.  Answer  to  amended  petition. —  Where  an  amended 
petition  is  filed  which  does  not  change  the  issues,  and  which  does 
not  attempt  to  charge  defendant  in  any  other  capacity  than  that 
in  which  he  was  charged  in  the  original  petition,  there  is  no  ne- 
cessity for  filing  an  additional  answer;  if  the  original  answer  is 
on  file  and  raises  an  issue,  no  default  can  be  taken.8 

§  525.  Supplemental  answer. —  The  filing  of  a  supplemental 
answer  constitutes  the  abandonment  of  any  and  all  previous 
answers.9 

§  526.  Several  defenses. — The  defendant  may  set  forth  in 
his  answer  as  many  defenses  and  counter-claims  as  he  may  have, 
whether  they  are  such  as  are  denominated  legal  or  equitable,  or 
both ;  they  must  each  be  separately  stated  in  such  manner  that  they 

•Simonds  v.  Beauchamp,  1  Ma  589;  7  Hopkins  v.  Huff,  67  App.  394.  As 
Brand  v.  Vanderpool,  8  Mo.  507.  to  traversing  averment  of  value,  see 

2  Edmunds  v.  St.  Louis  R.  Co.,  3  App.     §  542,  post. 

603.  8  Bremen  Bank  v.  Umrath,  55  App. 

3  Kansas  City  Hotel  Co.  v.  Sauer,  65    43. 

Mo.  279.  9  Kortzendorfer  v.  St.  Louis,  52  Mo. 

*  Russell  v.  Whitely,  59  Mo.  196.  204;  Rubelman  v.  McNichol,  13  App. 

•  Frederick  v.  Allgaier,  88  Mo.  598.  584.    See  also  ch.  XXX. 
6  See  Rev.  Stat  189?,  sec.  634. 


276  THE  ANSWER.  [§§  527,  528. 

may  be  intelligibly  distinguished,  and  must  refer  to  the  cause  of 
action  which  bhey  are  intended  to  answer.1  The  only  limitation 
upon  the  number  of  defenses  which  maybe  set  up  in  the  answer 
is  that  they  must  be  consistent  with  each  other.2  The  various 
answers  must  be  separately  and  distinctly  pleaded.3 

§  507.  Must  he  consistent  with  each  other. —  It  is  a  rule  of 
universal  application  that  where  distinct  and  separate  defenses 
are  included  in  the  same  answer  they  must  be  consistent  with 
each  other.4  And  the  test  whether  defenses  are  or  are  not  con- 
sistent is  whether  the  proof  of  one  necessarily  disproves  the 
other.5    For  the  defenses  are  not  inconsistent  if  both  may  be  true.6 

§  528.  Decisions  illustrating  the  rule  as  to  consistent  de- 
fenses.—  During  the  time  when  the  statute  required  all  plead- 
ings to  be  verified 7  it  was  held  that  a  denial  of  an  alleged  slander 
and  a  plea  of  justification  were  inconsistent,  and  could  not  be 
pleaded  in  the  same  answer.  Judge  Scott  says:  "The  object  of 
the  present  practice  act  was  to  introduce  truth  and  simplicity  in 
pleadings.  The  act  requires  that  the  pleadings  shall  be  verified 
by  affidavit.  This  requirement  must  necessarily  exclude  incon- 
sistent answers.  As  an  answer  in  justification  of  a  charge  for 
slander  must  admit  the  speaking  of  the  slanderous  words,  the  de- 
fendant cannot  deny  and  justify  the  speaking  of  the  words  at 
the  same  time.  Under  the  old  system  the  speaking  of  the  slan- 
derous words  might  be  denied  in  one  plea  and  justified  in  another, 
but  that  cannot  now  be  permitted.  What  were  consistent  or  in- 
consistent pleas  under  the  old  practice,  where  the  pleadings  were 
not  required  to  be  verified,  is  a  very  different  question  from  what 
are  consistent  or  inconsistent  answers  under  the  practice  now 
prevailing,  where  all  the  pleadings  are  required  to  be  sworn  to.'' 8 
But  in  Wood  v.  Hilbish 9  it  is  said:  "  Under  our  code  the  defend- 
ant in  an  action  for  slander  may  in  his  answer  deny  the  speak- 
ing of  the  words  and  also  justify;  the  denial  and  the  justification 
are  not  inconsistent.     Proof  of  one  does  not  disprove  the  other; 

1  Rev.  Stat.  1899,  sec.  605.  Patrick  v.  Boonville  Gas  Light  Co., 

2Crowder    v.   Searcy,   103    Mo.   97;  17  App.  462;  McCormick  v.  Kaye,  41 

Stottlemeyer  v.  Bobb,  7  App.  578.  Mo.  263;  Nelson  v.  Wallace,  48  App. 

3  Stottlemeyer  v.  Bobb,  7  App.  578.  193;  Cox  v.  Bishop,  55  App.  135. 

In  chapter  XX  (g  549)  the  question  6  Grier  Commission  Co.  v.  Docksta- 

is  considered  what,  defenses  may  be  der,  47  App.  42. 

joined  with  a  general  denial.  '  See  Rev.  Stat.  1855,  p.  1234,  sec.  20. 

'Atteberry  v.  Powell,  29   Mo.  429;  "Atteberry  v.  Powell,  29  Mo.  429, 

Crowder  v.  Searcy,  103  Mo.  97.  432. 

s  Nelson  v.   Brodhack,  44  Mo.  596;  923  App.  389. 


§  529.]  the  astsweb.  2T7 

proving  the  truth  of  the  words  spoken  does  not  prove  the  speak- 
ing of  the  words."  (p.  397.)  And  the  same  view  is  taken  in 
Nelson  v.  Wallace.1  If  in  an  action  for  slander  the  answer  con- 
tains a  plea  in  mitigation  of  damages,  it  should  not  also  contain 
an  averment  of  the  truth  of  the  alleged  slanderous  words,  since 
the  defenses  are  inconsistent ;  a  plea  of  the  truth  is  either  a  com- 
plete defense  to  the  action  or  its  result  is  an  aggravation  of  the 
damages.2 

§  529.  Same  —  Tlie  defense  of  payment  joined  with  otlier 
defenses. —  In  a  case  decided  by  the  supreme  court  in  1865,  it 
was  held  that  defendant,  when  sued  on  a  note,  will  not  be  per- 
mitted to  deny  the  execution  of  the  note  and  in  the  same  answer 
allege  payment,  because  the  defenses  are  inconsistent.3  In  1888 
a  case  involving  an  action  on  a  note  came  before  the  St.  Louis 
court  of  appeals.4  There  the  answer  admitted  the  execution  of 
the  note,  but  denied  that  plaintiff  was  the  owner  of  it,  and  at  the 
same  time  alleged  payment.  The  court  of  appeals  decided  that 
the  plea  of  payment  was  not  inconsistent  with  the  denial  of 
plaintiff's  ownership,  since  defendant  may  have  paid  the  note  to 
the  true  owner.  Apparently  this  is  all  that  was  involved  in 
that  case,  and  was  sufficient  to  warrant  the  affirmance  of  the 
judgment.  But  the  court  went  further,  and  said  that,  under  the 
decision  in  Nelson  v.  Brodhack?  pleas  of  non  est  factum  and  of 
payment  are  admissible  as  consistent  pleas  in  the  same  answer.6 
Cut  the  decision  of  the  supreme  court  there  cited  did  not,  any 
more  than  the  case  in  the  court  of  appeals  itself,  involve  the 
point  in  question.  The  action  in  the  case  of  Nelson  v.  Brodhack* 
was  one  in  ejectment.  The  answer  was  a  general  denial  and  a 
plea  of  the  statute  of  limitations;  and  the  question  was  whether 
the  pleas  were  inconsistent.  In  deciding  that  they  were  not  in- 
consistent, the  supreme  court  arguendo  illustrates  the  point  by 
saying:  "A  special  defense  is  not  necessarily  inconsistent  with 
a  denial.  For  instance,  suppose  A  sues  B  upon  a  promissor}r 
note;  B  denies  its  execution,  in  the  nature  of  a  special  non  est 
factum  under  the  old  system,  and  afterwards  alleges  payment 

1 48  App.  193.     In  neither  of  these  rule,  a  rule  which  is  even  more  con- 
cases    is    the   above   cited    supreme  sonant  with  the  theory  of  the  Code 
court  decision  noticed.     But  as  that  than  with  that  of  the  common  law. 
decision   is  apparently  based    solely        2Coe  v.  Griggs,  76  Mo.  619. 
upon  the  requirement  that  the  answer        3  Sheppard  v.  Starrett,  35  Mo.  367. 
be  verified,  and  as  verification  is  no        4  Cavitt  v.  Tharp,  30  App.  131. 
longer  required,  the  two  court  of  ap-        5  44  Mo.  596. 
peals  decisions  probably  state  the  true        6  Cavitt  v.  Tharp,  30  App.  131,  134. 


278  TIIE   ANSWKK.  [§  530_ 

or  release.  lie  does  not  thereby  deny  the  existence  of  the  paper-, 
and  an  averment  of  payment  or  any  other  matter  of  discharge 
is  not  necessarily  inconsistent  in  fact  with  original  non-liabil- 
ity,  for  men  sometimes  adjust  demands  for  which  they  are 
not  liable.1  The  court  of  appeals,  in  deciding  the  above  case  of 
Ca/oitt  v.  Thar])2  makes  no  reference  to  Sheppard  v.  Starrett? 
Nor  does  it  mention  May  v.  Burk*  though  the  latter  case,  by 
inference  at  least,  affirms  the  former  decision  of  the  supreme 
court.  The  language  of  this  last  decision  is  as  follows:  "The 
plaintiffs  demurred  to  the  answer,  because,  as  alleged,  it  did  not 
state  a  defense  to  the  action,  and  that  the  answer  is  inconsistent 
in  its  various  defenses,  citing  as  authority  Sheppard  v.  StarreU? 
In  that  case  it  was  held  that  in  a  suit  on  a  note,  the  defense  of 
non  est  factum  and  payment  are  inconsistent  and  not  permissible. 
But  there  is  no  such  question  presented  here.  In  the  case  at  bar 
the  defendant  pleads  non  est  factum  as  to  the  instrument  sued 
on,  and  payment  of  another  debt  on  a  different  note."  And  the 
court  holds  that  those  defenses  are  not  inconsistent.5  An  ad- 
ministrator de  honis  non  brought  an  action  to  recover  the  balance 
of  a  deposit  which  decedent  had  made  with  the  defendant.  The 
answer  set  up,  first,  payment  of  the  entire  amount  deposited  to 
the  former  administrator  in  his  representative  capacity,  and  a 
subsequent  deposit  by  him  of  such  amount  to  his  individual  ac- 
count; second,  payment  in  divers  sums  amounting  in  the  aggre- 
gate to  the  amount  deposited  upon  the  order  of  the  former  ad- 
ministrator in  his  representative  capacity.  It  was  held  that 
these  defenses  were  inconsistent,  and  that  defendant  was  prop- 
erly required  to  elect  on  which  defense  he  would  stand.6 

§  530.  Further  illustrations  of  the  rule  as  to  consistent  de- 
fenses.—  In  an  action  in  which  defendant  claims  no  rights  as 
against  the  plaintiff  under  the  contract  sued  on,  he  may  set  up 
both  its  illegality  and  its  performance.7  Where  the  action  is  on 
a  written  contract,  and  the  answer  contains,  first,  a  duly-verified 
denial  of  the  execution  of  the  writing,  and,  secondly,  alleges  that 
the  contract  was  not  performed  by  plaintiff  in  accordance  with 
its  terms,  the  answer  taken  as  a  whole  does  not  constitute  an 

1 44  Mo.,  p.  598.  upon  a  note  the  answer  may  deny  its 

2  30  App.  131.  execution  and  also  set  up  the  statute 

3  35  Mo.  367.  of  limitations.  Schuchman  v.  Heath, 
*  80  Mo.  675.  38  App.  280.  Consult,  also,  §  549,  post 
5  80  Mo.,  p.  679.  The  same  court  of        6  Smith  v.  Culligan,  74  Mo.  387. 

appeals  has  decided  that  in  an  action        7  Lee  v.  Dodd,  20  App.  271. 


§§  531-533.]  THE   ANSWER.  279 

admission  of  the  execution  of  the  instrument.1  In  a  case  involv- 
ing a  defense  to  an  action  upon  a  policy  of  insurance  there  was 
a  plea  of  non  est  factum,  which  was  followed  by  a  further  de- 
fense that  one  of  the  conditions  of  the  policy  had  been  violated. 
While  the  question  of  the  consistency  of  these  defenses  was  not 
raised  in  the  case,  the  court  expressed  a  doubt  whether  the  two 
defenses  were  consistent.2 

§  531.  "Where  in  an  action  on  a  note  the  answer  alleges  that 
there  has  been  a  compromise  and  release  of  the  note,  and  that 
plaintiff  had  executed  a  written  release  to  defendant,  it  seems 
that  a  reply  denying  that  the  note  in  suit  had  any  connection 
with  the  release,  and  at  the  same  time  alleging  that  the  release 
was  procured  by  fraud,  sets  up  inconsistent  defenses  to  the  an- 
swer.3 .  In  an  action  of  ejectment,  brought  by  the  heirs  against 
the  purchaser  at  an  administrators  sale  which  was  void  for  in- 
formality, the  defendant  may  set  up  the  statute  of  limitations, 
and  at  the  same  time  may  plead  that  the  purchase-money  and 
taxes  paid  by  him  were  for  the  benefit  of  the  plaintiffs,  and 
should  in  equity  and  good  conscience  be  refunded  to  him.4  Where 
a  suit  is  brought  to  enforce  a  contract  for  the  purchase  of  land, 
the  vendee  cannot  plead  the  statute  of  limitations,  which  would 
rescind  the  contract  and  leave  the  title  in  plaintiff,  and  at  the 
same  time  insist  on  having  the  contract  performed  by  a  delivery 
to  him  of  a  deed  from  the  plaintiff.5 

§  532.  A  defendant  cannot  rely  on  a  former  judgment  as  res 
an [judicata  of  the  matter  in  issue,  and  at  the  same  time  insist  that 
such  former  judgment  was  void.6  A  purchaser  at  an  executor's 
sale  cannot  at  the  same  time  claim  under  the  sale  and  also  plead 
that  the  sale  was  not  made  in  accordance  with  the  order  of  the 
court.5  The  allegations  that  a  mortgage  was  satisfied  and  that, 
notwithstanding  the  satisfaction,  the  property  was  sold  under  it 
and  bid  in  by  the  mortgagee  are  not  inconsistent.7 

§  533.  In  an  action  for  the  purchase  price  of  a  machine,  a  de- 
fense of  breach  of  warranty  and  a  defense  that  the  machine  was 
worthless  for  the  purpose  .for  which  it  was  purchased  are  con- 
sistent defenses,  and  may  be  set  up  in  the  same  answer.8    And 

»  Cox  v.  Bishop,  55  App.  135.  fi  Adair  v.  Adair,  78  Mo.  630. 

3  Grady  v.  American   Central  Ins.        6  Sheehan  &  Loler  Trans.  Co.  v.  Sims, 
Co.;  60  Mo.  116.  36  App.  224. 

3Dalrymple  v.  Craig,  76  App.  117.  7  Thornton  v.  Irwin,  43  Mo.  153. 

4  Schaefer  v.  Causey,  8  App.  142,  af-        8  Keystone  Implement  Co.  v.  Leon- 
firmed  by  the  supreme  court,  76  Mo.    ard,  40  App.  478. 

865. 


280  T1!K   ANSWKK.  [§§  534-530. 

the  oourt  adds  that  the  second  defense  was  valid  as  showing  a 
failure  of  consideration,  and  this  whether  the  defendant  offered 
to  return  the  machine  or  not,  or  failed  to  notify  plaintiff  of  its 
worthlessness.  That  case  was  decided  by  the  Kansas  City  court 
of  appeals;  but  it  does  not  entirely  meet  the  approval  of  the  St. 
Louis  court  of  appeals.  The  latter  court  intimates  that  the  de- 
cision may  be  upheld  on  the  ground  that  the  answer  did  in  fact 
contain  an  offer  to  return  the  machine,  but  it  holds  that  without 
such  an  offer  the  defense  would  not  be  good  and  that  the  two 
defenses  are  inconsistent.1 

§  534.  Defendant  in  an  action  for  assault  and  battery  may 
set  up  the  three  defenses  of,  first,  a  general  denial;  second,  son 
assault  demesne;  and  third,  mollitur  onanus  imposuit? 

§  535.  In  an  action  to  enforce  a  mechanic's  lien  brought  against 
the  owner  and  contractor,  the  owner  denied  any  knowledge  that 
plaintiff  had  delivered  the  materials  alleged,  and  denied  that  he 
gave  any  notice  of  his  lien;  he  also  set  up  as  a  counter-claim  that 
the  plaintiff  had  guaranteed  that  the  contractor  should  build  the 
house  in  a  workmanlike  manner  and  finish  it  by  a  certain  date, 
that  neither  guaranty  had  been  fulfilled,  and  claimed  damages 
for  the  breach.  It  was  held  that  these  defenses  were  not  incon- 
sistent.3 

§  536.  Equitable  defenses. —  An  equitable  defense  may  be  set 
up  in  and  to  any  action  at  law.4  And  it  has  been  said  that  the 
equitable  defense  is  to  be  tried  by  a  jury.5  But  such  is  not  the 
view  now  taken;  for  if  a  suit  involves  both  legal  and  equitable 
issues,  only  the  issues  at  law  are  to  be  tried  by  a  jury.6  And 
if  the  answer  to  an  action  at  law  admits  the  plaintiff's  cause  of 
action  and  sets  up  a  purely  equitable  defense,  it  converts  the 
whole  case  into  a  suit  in  equity,  triable  by  the  court.  If,  on  the 
other  hand,  the  answer  sets  up  two  defenses,  one  equitable  and 
the  other  legal,  plaintiff  is  still  entitled  to  his  jury  trial,  in  case 
the  equitable  defense  does  not  prevail.6  Affirmative  relief  may 
be  given  a  defendant  in  all  cases  where,  from  the  nature  of  the 
subject-matter  and  the  relations  of  the  parties,  a  specific  remedy 
in  his  favor  is  possible  according  to  the  doctrines  of  equity  juris- 
prudence.   Thus,  the  defendant  in  ejectment  may,  in  addition  to 

1  Boyer  v.  Neel,  50  App.  26.  considered  what  defenses  are  consist- 

2  Rhine  v.  Montgomery,  50  Mo.  566.    ent  with  a  general  denial. 

» McAdow  v.  Ross,  53  Mo.  199.  .   *  McCollum  v.  Boughton,  132  Mo.  G01. 

In  ch.  XX,  §  549,  the  question  is        5  State  ex  rel.  v.  Meagher,  44  Mo.  356. 

6  Ridge  way  v.  Herbert,  150  Mo.  606. 


§  537.]  THE   ANSWER.  281 

the  defense  of  the  legal  title,  also  in  a  separate  count  of  his  an- 
swer invoke  the  aid  of  the  court  on  its  equity  side  to  make  the 
adjudication  of  his  legal  title  final,  and  for  an  order  restraining 
the  plaintiff  from  further  harassing  him  by  subsequent  actions 
of  ejectment  for  the  same  property  on  the  same  title.1  For  it 
must  be  borne  in  mind  that  a  judgment  in  an  action  of  ejectment, 
if  the  legal  title  only  is  brought  in  question,  does  not  constitute 
a  bar  to  other  and  further  actions  of  ejectment  between  the  same 
parties  and  involving  the  same  title.  It  is  only  when  an  equi- 
table defense  is  interposed,  and  a  judgment  rendered  in  favor  of 
defendant  on  the  equities  thus  set  up,  that  the  judgment  becomes 
final,  and  may  be  pleaded  in  bar  in  a  subsequent  action  between 
the  same  parties  concerning  the  same  title.2  It  is  now  well  set- 
tled in  this  state  that  under  the  Code  a  defendant  in  an  action 
of  ejectment  may  by  his  answer  interpose  an  equitable  defense, 
and  that  his  equities  may  be  tried  and  determined  directly  in 
that  action,  without  having  to  resort  to  an  independent  suit  in 
equity.3  The  defense  to  an  action  on  an  administrator's  bond 
that  the  trust  funds  had  been  stolen  is  an  equitable  one,  but  may 
be  pleaded  to  the  action  at  law.4 

§  537.  Same  —  Decisions  illustrating  the  doctrine. — "Where, 
to  an  action  on  the  covenants  of  a  deed,  defendant  sets  up  the 
equitable  defense  that  by  a  mistake  of  the  scrivener  the  deed  did 
not  correctly  express  the  covenants,  and  that  but  for  such  mis- 
take there  wTould  be  no  breach  of  the  covenants,  these  facts  may 
be  shown  in  evidence,  and,  if  proved,  will  defeat  the  action, 
though  there  is  no  prayer  for  a  reformation  of  the  deed  to  make 
it  correctly  express  the  intention  of  the  parties.5  And  it  is  said 
by  the  supreme  court  that  the  defendant  is  entitled  to  whatever 
benefit  the  facts  pleaded  by  him  may  give,  whether  the  defense 
is  legal  or  equitable  in  its  nature.6  Where  an  equity  based  upon 
a  part  performance  is  set  up  as  a  defense,  it  must  be  done  with 
that  degree  of  fullness  and  precision  which  is  required  in  a  bill 
framed  with  a  view  to  a  decree  for  specific  performance.7 

1  Swope  v.  Weller,  119  Mo.  556.  promissory  notes,  and  it  was  held  that 

2  Sampson  v.  Mitchell,  125  Mo.  217.     defendant  might  show,  under  proper 
8Clyburn  v.  McLaughlin,  106  Mo.  521,    allegations  in  his  answer,  that  the  ex- 

in  which  many  of  the  previous  cases  ecution  of  the  notes  was  materially 

are  cited.  induced  by  an  innocent,  but  substan- 

4  State  ex  rel.  v.  Meagher,  44  Mo.  356.  tial,  misrepresentation  on  the  part  of 

5  Barlow  v.  Elliott,  56  App.  374.  the  payee. 

«  Sachleben  v.  Heintze,  117  Mo.  520.  » Ells  v.  Pacific  Railroad,  51  Mo.  200; 
That  case  was  an  action  on  certain    Brown  v.  Brown,  106  Mo.  611. 


CHAPTER  XX. 


THE  ANSWER  — THE  DENIAL. 


§  538.  General  and  specific. 

539.  Form  of  denial. 

540.  Negativing  precise  words  of  the 

petition. 

541.  Denial  of  indebtedness. 

542.  Averments   as    to    value    not 

traversable. 

543.  Negative  pregnant. 


546.  General  denial. 

547.  Denying  execution  of  instru- 

ment. 

548.  Effect  of  denying  specifically 

what  is  admissible  under  gen- 
eral denial. 

549.  Joining  other  defenses  with  a 

general  denial. 


§  53S.  General  and  specific. —  Under  our  system  only  two 
kinds  of  denial  are  known,  a  general  and  a  specific  denial.1  A 
general  denial  necessarily  goes  to  the  entire  petition.  Each 
specific  denial  is  directed  to  some  one  of  the  allegations  of  the 
petition.  These  two  modes  of  denial  are,  and  must  in  their  very 
nature  be,  separate  and  distinct.  They  cannot  both  be  mingled 
in  the  same  answer.  Therefore  an  answer  which  "  denies  each 
and  every  allegation  of  the  petition,  except  what  is  hereinafter 
expressly  admitted,"  and  one  which,  after  making  certain  specific 
denials,  goes  on  to  say  that  "  each  and  every  allegation  of  the 
petition  not  herein  admitted  is  denied,"  are  each  and  both  of 
them  improper.     And  such  is  the  ruling  of  the  courts.2 

§  539.  Form  of  denial. —  Denials  are  not  required  to  be  of  any 
particular  form  or  to  be  couched  in  any  special  phraseology,  but 
they  must  be  expressed  in  language  which  conveys  to  the  mind 
of  the  reader  a  clear  understanding  of  the  facts  they  are  intended 
to  put  in  issue.3  A  statement  by  defendant  that  he  does  not 
know  whether  a  certain  state  of  facts  exists  is  not  a  sufficient 
denial.4  Such  an  averment  comes  short  of  the  statutory  permis- 
sion that  defendant  may  aver  that  he  has  no  knowledge  or 
information  sufficient  to  form  a  belief.5  An  allegation  in  an 
answer  that  plaintiff  knew  certain  facts  does  not  tender  an  issue 
as  to  the  existence  of  such  facts;  and  the  plaintiff's  traverse  of 


i  Kev.  Stat.  1899,  sec.  (594. 

2  See  post,  §  546. 

3  Clark  v.  Dillon,  97  N.  Y.  370. 

4  Watson  v.  Hawkins,  60  Mo.  550; 
Henry  v.  Hinds,  18  App.  497. 


&  Rev.  Stat.  1899,  sec  604.  The  evi- 
dent intent  of  the  statute  is  that  de- 
fendant must  obtain  such  information 
as  he  can  by  reasonable  effort. 


§§  540,  541.]  THE   DENIAL.  2S3 

such  an  allegation  is  not  an  admission  of  the  existence  of  such 
facts  as  are  alleged  to  have  been  known.1  In  Loler  v.  Cool,2  the 
plaintiff  sued  for  damages  for  a  failure  on  the  part  of  the  de- 
fendant to  perforin  certain  stipulations  contained  in  a  written 
lease,  and  set  out  the  several  particulars  in  which  the  defendant 
had  failed  to  perform  his  contract.  The  answer  averred  that 
defendant  "  had  in  all  respects  faithfully  kept  its  terms  and  com- 
plied with  its  conditions,  except  in  the  payment  of  taxes  in  the 
sum  of  §31."  It  was  held  that  this  answer  was  informal  and  de- 
fective in  not  specifically  denying  the  several  allegations  of  the 
petition. 

§  540.  Negativing  precise  words  of  the  petition. —  As  a  gen- 
eral rule  it  is  not  sufficient  that  the  answer  should  negative  the 
precise  words  of  the  petition.3 

§  541.  Denial  of  indebtedness. —  A  mere  denial  of  indebted- 
ness is  not  a  sufficient  answer.  Thus,  a  general  averment  by  a 
defendant  that  he  does  not  owe  the  money  sued  for  or  any  part 
thereof  is  not  such  a  denial  as  is  contemplated  by  the  Code;  he 
must  answer  the  plaintiff's  petition  by  a  direct  denial  of  its  ma- 
terial averments,  or  by  stating  the  facts  upon  which  he  relies  as 
a  defense.4  And  where  the  petition  charges  that  defendant  owes 
plaintiff  for  goods  sold  and  delivered,  an  answer  which  merely 
denies  the  indebtedness  impliedly  admits  the  sale  and  delivery.5 
In  Engler  v.  Bate,6  we  find  what  is  well  characterized  by  the  su- 
preme court  as  a  specimen  of  very  great  looseness  in  pleading. 
In  that  case  plaintiff,  instead  of  setting  out  the  contract  on  which 
he  sued,  and  stating  the  particulars  in  which  the  defendant  had 
failed  to  comply  with  the  contract,  simply  stated  the  indebted- 
ness of  the  defendant  in  certain  specific  sums  for  a  failure  on  his 
part  to  comply  with  his  contract  in  different  particulars.  To  this 
petition  the  defendant  filed  an  answer,  which  was  in  effect  the 
old  common-law  plea  of  nil  debet;  that  is,  he  merely  answered 
that  he  was  not  indebted  to  the  plaintiff,  instead  of  answering 
the  specific  charges  contained  in  the  petition,  and  the  court  held 
that  the  answer  was  defective.7   To  deny  the  indebtedness  is  not 

i  Thomas  v.  Liebke,  13  App.  389.  4  Sappington  v.  Jeffries,  15  Mo.  628. 

7  Ma  85.  6  Lee  v.  Casey,  39  Mo.  383. 

3  Dare  v.  Pacific  Railroad,  31  Mo.  480.  6 19  Mo.  543. 

This  question  will  be  fully  considered  7  It  is  proper  to  state  in  this  connec- 

when  treating  the  subject  of  negative  tion  that  the  course  which  defendant 

pregnant.    (See  §§543-545, post.)    The  should  have  pursued  was,  before  an- 

reader  will  there  find  the  general  rule  swering,  to  file  a  motion  to  compel 

stated  and  the  exceptions  discussed.  plaintiff  to  make  his  petition  more 


2S4:  THE   AJBTSWEK.  [§§  512,  543. 

a  denial  or  the  existence  of  the  contract  out  of  which  the  petition 
avers  the  indebtedness  arose.1  In  Westlake  v.  Moore,2  the  petition 
set  forth  a  claim  by  plaintiff  for  services  and  attendance  ren- 
dered  to  defendant  on  a  journey  from  San  Francisco  to  St.  Louis, 
and  for  money  expended  for  the  use  of  the  defendant,  together 
with  an  account  showing  the  items.  The  answer  simply  denied 
that  defendant  was  indebted  to  the  plaintiff  for  any  one  of  the 
items  stated  in  his  petition.  It  was  held  that  under  the  circum- 
stances, the  petition  being  so  general,  and  in  view  of  the  fact 
that  no  objection  was  raised  to  it  until  the  trial,  the  answer  was 
sufficient.3 

§  542.  Averments  as  to  value  not  traversable. —  In  an  action 
against  a  carrier  for  failure  to  deliver  certain  malt  shipped  by 
plaintiff,  the  petition  stated  the  value  of  the  malt,  which  allega- 
tion was  not  denied  in  the  answer.  The  trial  court  told  the  jury 
that  the  value  of  the  malt  was  admitted.  But  the  supreme  court 
held  that  this  was  erroneous,  as  the  value  of  the  article  shipped 
was  an  immaterial  averment,  and  need  not  be  denied.4  The  same 
rule  was  announced  in  a  later  case,  which  was  an  action  for  a 
conversion,  the  court  saying,  while  citing  with  approval  the  case 
just  cited,  "these  allegations  of  value  are  not  what  are  termed 
traversable,  so  as  to  conclude  the  opposite  party  if  not  answered." 5 

§  543.  Negative  pregnant. — The  doctrine  of  negative  pregnant 
seems  not  to  be  fully  recognized  in  Missouri,6  and  is  treated  by 
our  courts  as  an  informality  only,  on  the  ground  that  a  denial 
which  is  evasive  or  ambiguous  is  faulty  in  form.7  In  an  early 
decision,  however,  it  was  held  that,  where  an  action  is  brought 
upon  an  award  rendered  by  arbitrators,  and  the  answer  alleges 
that  one  of  the  arbitrators  was  prejudiced  and  that  such  fact  was 
unknown  to  defendant,  if  the  replication  denies  the  prejudice 
and  that  such  fact  was  unknown  to  defendant,  it  thereby  admits 
the  prejudice.8  On  the  other  hand,  in  an  action  against  a  rail- 
definite  and  certain,  and  when  that  5  Field  v.  Barr,  27  Mo.  416.  See  §  523, 
■was  done  he  should  have  answered    ante. 

the  specific  averments  of  the  petition,        6  Merchants  National  Bank  v.  Rich- 
or  should  have  filed  a  general  denial.    ards.  74  Mo.  77.     Additional  cases  in- 

i  Springer  v.  Kleinsorge,  83  Mo.  152;  volving  this  question  will  be  found  in 
Hurt  v.  Ford,  142  Mo.  283.  §§  206,  207,  ante. 

2 19  Mo.  556.  7  Law  v.  Crawford,  67  App.  150. 

a  See  note  7  on  preceding  page.  8  Hyeronimus  v.  Allison,  52  Mo.  102. 

4  Wood  v.  Steamboat  Fleetwood,  19 
Mo.  529. 


§  544.]  THE   DENIAL.  285 

road. company  for  injury  to  stock  arising  from  the  failure  of  de- 
fendant to  erect  a  fence  where  it  was  required  by  law  to  do  so, 
the  answer  alleged  that  plaintiff  had  himself  contracted  to  erect 
a  fence  along  the  line  of  defendant's  railroad  and  had  failed  to 
do  so,  and  that  it  was  in  consequence  of  this  failure  to  erect  the 
fence  that  his  stock  went  on  the  railroad.  The  replication  denied 
that  plaintiff  was  bound  by  any  contract  with  defendant  to  build 
the  fence  on  his  own  land  on  the  line  of  said  railroad  track  as 
stated  by  defendant  in  his  answer.  The  court  held  that  this 
might  be  construed  to  be  a  negative  pregnant,  and  that  it  im- 
pliedly admitted  that  some  kind  of  contract  had  been  made ;  but 
that,  where  a  contract  is  thus  collaterally  set  up  in  the  pleadings, 
a  denial  such  as  the  above  is  sufficient  to  require  the  party  set- 
ting it  up  to  produce  it  on  the  trial,  so  that  its  terms  may  be  con- 
strued by  the  court.1  In  another  case  before  the  supreme  court, 
the  allegation  of  the  petition  was  that  on  or  about  the  9th  of 
March,  1852,  A,  being  the  owner  of  land  in  fee  simple,  made,  exe- 
cuted, acknowledged  and  delivered  to  said  H  a  deed  by  which  he 
conveyed  to  said  H  the  land  in  question.  By  his  answer  the  de- 
fendant denied  that  the  said  A  on  the  9th  day  of  March,  1852, 
or  at  any  time  before  or  since,  made,  executed,  acknowledged 
and  delivered  to  H  a  deed  by  which  he  conveyed  to  said  II  said 
land  or  any  part  thereof.  It  was  held  that  this  denial  was  not  in 
the  nature  of  a  negative  pregnant;  nor  was  it  bad  for  ambiguity.2 
If  in  an  action  for  slander  the  answer  denies  that  defendant  wil- 
fully, wantonly  and  maliciously  spoke  the  slanderous  words  in 
the  presence  of  the  persons  named  in  the  petition,  it  does  not 
thereby  deny  the  speaking  of  the  words  but  only  the  malice  and 
attendant  circumstances.3  If  a  firm  brings  an  action  on  a  note 
payable  to  it  as  such,  an  answer  -which  simply  puts  in  issue  the 
title  of  the  plaintiffs  to  the  note  sued  on,  admits  the  partnership 
as  alleged  in  the  petition.4 

§544.  Further  discussion  of  the  negative  pregnant. —  In 
one  case  the  supreme  court  declares  unqualifiedly  that  it  is  not 
sufficient  to  negative  the  precise  words  of  the  petition.5  But,  as 
has  already  been  shown,  that  doctrine  is  not  adopted  to  its  full- 
est extent.  In  the  case  just  cited 5  the  denial  in  the  exact  language 
of  the  petition  was,  as  appears  from  the  opinion  of  Judge  Dryden, 

1  Ells  v.  Pacific  Railroad,  55  Mo.  278.        4  Arthur  v.  Pendleton,  7  Mo.  519. 
2Wynn  v.  Cory,  43Mo.  :JD1.  5  Dare  v.  Pacific  Railroad,  31   Ma 

3  Lamberson  v.  Long,  66  App.  253.        480. 


286  TIIE   ANSWER.  [§  545. 

so  vague  and  indefinite  as  to  leave  it  in  the  highest  degree  un- 
certain as  to  what  issue  defendant  intended  to  present.  But  in 
Wynn  v.  Cory?  which  has  been  already  noticed  (see  next  preced- 
ing section),  the  denial  in  the  words  of  the  petition  is  not  open 
to  the  same  objection,  and  it  was  there  held  to  be  sufficient.  In 
the  earlier  case  of  Emory  v.  PMllvps?  where  the  petition  alleged 
that  the  defendant,  without  leave,  did  wrongfully  enter  upon  a 
tract  of  land  of  which  plaintiffs  wrere  the  owners  and  in  posses- 
sion, and  did  take  from  the  premises  a  house  thereon  used  and 
employed  as  a  Methodist  meeting  house  or  church,  and  carried 
off  said  house,  and  defendant  denied  that  he  "  wrongfully  entered 
upon  the  premises  and  took  therefrom  a  Methodist  church  or 
meeting  house  of  the  plaintiffs,"  and  the  answer  further  charged 
the  fact  to  be  that  the  house  spoken  of  was  defendant's  property, 
the  answer  was  held  to  admit  the  taking  away  of  the  house,  the 
court  saying:  "Although  the  answer  does  not  frankly  admit  it, 
yet  such  is  the  evasive  and  improper  manner  in  stating  the  de- 
fense that  the  law  would  construe  this  as  admitting  the  taking, 
but  not  the  ownership." 3 

§  545.  In  First  National  Bank  v.  Hogan*  plaintiff  alleged  that 
a  certain  insurance  company,  by  its  draft  in  writing  signed  by  its 
secretary,  created  the  obligation  sued  on.  The  answer  simply 
denied  that  the  company  "  by  its  draft  in  writing  signed  by  its 
secretary  "  executed  the  obligation  as  alleged.  In  that  case  the 
court  held  that,  while  the  denial  was  inartistic,  it  was  sufficient 
under  the  Code.  The  least  that  can  be  said,  however,  with  ref- 
erence to  this  mode  of  denial,  is  that  it  is  exceedingly  loose,  that 
it  is  liable  to  the  charge  of  vagueness  and  uncertainty,  and  is  not 
to  be  commended.  If  it  is  desired  to  put  in  issue  each  specific 
allegation  of  the  petition,  the  answer  should  deny  each  separately.5 

1 43  Mo.  301.  or  any  other  sum."    Or  if,  as  in  that 

2  22  Mo.  499.  case,  the  fact  was  that  plaintiff  was 

3  Id.,  p.  501.  employed  by  defendant,  but  not  for 

4  47  Mo.  472.  the  time  alleged  in  the  petition,  that 

5  For  example,  in  the  case  of  Dare  v.  averment  alone  should  be  denied  as 
Pacific  Railroad,  31  Mo.  480,  the  allega-  follows:  "  Defendant  denies  that  it  em- 
tions  of  the  petition  might  be  denied  ployed  plaintiff  as  a  ticket  agent  for 
in  the  following  form:  "Defendant  the  term  of  one  year,  or  for  any  defi- 
denies  that  it  employed  the  plaintiff  nite  term  or  period,  but  alleges  that  it 
as  ticket  agent  for  the  term  of  one  employed  him  at  the  rate  of  $100  per 
year  or  for  any  other  term,  and  denies  month  during  such  time  only  as  plaint- 
further  that  it  ever  agreed  or  prom-  iff  should  be  retained  by  defendant; 
ised  to  pay  plaintiff  the  sum  of  $1,200,  and  that  it  did  on  the  19th  day  of 


§§  546,  547.]  the  denial.  287 

§546.  General  denial. —  Section  604 !  requires  that  the  an- 
swer shall  contain  a  general  or  specific  denial  of  each  material 
allegation  of  the  petition  which  is  intended  to  be  controverted 
by  the  defendant,  or  any  knowledge  or  information  thereof  suf- 
ficient to  form  a  belief.  But  whichever  form  the  answer  assumes 
it  must  fall  within  one  of  these  classes;  it  cannot  partake  at  the 
same  time  of  a  general  and  of  a  specific  denial.2  If  it  is  designed 
to  make  a  general  denial,  the  answer,  should  be  that  defendant 
denies  each  and  every  allegation  of  plaintiff's  petition.  It  is  bad 
pleading  to  say  that  defendant  denies  each  and  every  allegation 
contained  in  the  petition,  except  as  hereinafter  admitted.  It  is 
such  an  answer  which  constitutes  a  mingling  of  the  general  with 
the  specific  denial.3  But  the  objection  to  such  an  answer  must 
be  taken  before  trial,or  its  objectionable  character  will  be  waived.4 
Again,  it  is  not  proper  that  the  denial  of  the  answer  should  be 
of  each  and  every  "  material "  allegation  of  the  petition,  since  the 
court  and  the  adverse  party  are  not  to  be  left  to  conjecture  what 
allegations  the  defendant  deems  material.5  But  this  defect  also 
is  waived,  if  the  parties  proceed  to  trial  on  it  without  objection.6 
Where  an  answer  closes  with  a  general  denial  of  all  the  allega- 
tions of  the  petition  not  therein  admitted  to  be  true,  it  avails 
nothing  as  a  general  denial,  if  the  specific  defenses  pleaded  in 
the  answer  are  all  predicated  upon  the  truth  of  the  facts  charged.7 

§547,  Denying  execution  of  instrument. —  Where  the  in- 
strument sued  on  has  been  rendered  void  by  an  alteration,  an 
allegation  of  the  fact  of  such  alteration  is  a  sufficient  plea  of 
non  est  factum}  "Where  an  insane  person  is  sued  on  an  instru- 
ment in  writing,  the  answer  of  his  guardian  admitting  the  exe- 
cution of  the  instrument  by  his  ward,  but  alleging  that  the  ward 
was  at  the  time  of  unsound  mind,  is  equivalent  to  a  plea  of  non 
est  factum,,  for,  while  it  admits  the  manual  act  of  signing,  it  de- 
nies the  consenting  mind,  without  which  no  act  can  possess  any 
contractual  force.9    Where,  in  an  action  by  an  assignee  of  an  in- 

June  discharge  plaintiff,  and  paid  him  v.  Phoenix  Ins.  Co.,  28  App.  7;  Walker 

for  the  time  he  had  served  defendant."  v.  Phcenix  Ins.  Co.,  62  App.  209. 

For  further  decisions  on  the  question  of  4  Collins  v.  Trotter,  81  Mo.  275. 

negative  pregnant,  see  §§  206, 207,  ante.  5Edmondson  v.  Phillips,  73  Mo.  57: 

i  Rev.  Stat.  1899.  Pry  v.  Hannibal  &  St.  J.  R.  Co.,  73  Mo. 

2  But  this  must  not  be  confounded  123;  Smith  v.  Lindsey,  89  Mo.  76. 
with  the  pleading  of  a  general  denial  6  Smith  v.  Lindsey,  89  Mo.  TO. 

and  in  the  same  answer  setting  up  7 State  ex  rel.  v.  Firemen's  Funding. 

special  defenses,  this  latter  being  ad-  Co.,  152  Mo.  1. 

missible.     See  §g  548-550,  post.  8Law  v.  Crawford,  67  App.  150. 

3  Long  v.  Long,  79  Mo.  644;  Bradley  »  Collins  v.  Trotter,  81  Mo.  275. 


the  answer.  [§§  548,  549. 

strument,  the  plea  is  non  est  factum,  the  fact  of  the  assignment 
is  adrnil  I 

t  of  denying  specifically  what- is  .admissible  under 
general  denial. —  Matters  of  defense  specially  pleaded  may  be 
stricken  out  if  t\\ej  are  such  as  would  be  admissible  in  evidence 
under  a  gen  oral  denial.2  But,  although  the  court  should  strike 
out  such  special  defenses  where  the  answer  contains  a  general 
denial,  and  the  evidence  to  support  the  special  defenses  is  admis- 
sible under  the  general  denial,  yet  the  judgment  will  not  be  re- 
versed because  the  court  refuses  to  strike  them  out.  Plaintiff 
cannot  by  any  possibility  be  prejudiced  by  such  refusal.3 

§  5i9.  Joining  otlier  defenses  with  a  general  denial.— In  an 
action  on  a  promissory  note,  the  answer  may  plead  the  general 
issue,  want  of  consideration  and  payment.4  So,  too,  the  several 
pleas  of  non  est  factum  as  to  the  instrument  sued  on,  the  pay- 
ment of  another  debt  on  a  different  note  which  appears  by  the 
pleadings  and  the  evidence  only  as  tending  to  show  why  defend- 
ant is  not  liable  on  the  note  sued  on,  and  the  statute  of  limita- 
tions, may  all  be  joined  in  the  same  answer.5  In  a  reply,  a  pica  of 
ratification  may  be  joined  with  a  general  denial  if,  under  the 
circumstances,  it  appears  that  both  may  be  true.6  In  Nelson  v. 
Brodhack1  it  is  decided  that  the  defense  of  the  statute  of  limita- 
tions may  be  set  up  in  the  same  answer  with  a  general  denial. 
Says  Bliss,  J. :  "  If  we  were  to  limit  our  statutory  allowance  of 
consistent  defenses  by  the  strict  logic  of  the  old  special  pleas  in 
bar,  all  special  defenses  would  be  cut  off  when  the  cause  of  ac- 
tion was  denied ;  for  such  special  defenses  are  technically  sup- 
posed to  confess  and  avoid,  although  in  fact  they  may  not  con- 
fess at  all.  Such  an  interpretation  of  the  statute  should  not  be 
adopted  if  there  is  any  other  that  will  give  a  party  his  clear 
right  to  several  defenses."  (p.  598.)  It  is  true  that  was  an  ac- 
tion of  ejectment,  in  which  the  bar  of  the  statute  of  limitations 
may  be  shown  under  a  general  denial  without  being  specially 
pleaded.  Of  the  same  character  is  the  case  of  Ledbetter  v.  Led- 
betterf  in  which  Nelson  v.  Brodhack'1  is  followed.     But  it  is  also 

1  Ragland    v.   Ragland,   5    Mo.    54;  fendant  may  be  used  for  the  benefit 

Davis  v.  Imboden,  10  Mo.  340.  of  another  defendant,  see  ante,  %  519. 

The  subject  of  denying  the  execu-  4  Patrick  v.  Boonville  Gaslight  Co., 

tion  of  an  instrument  under  oath  is  17  App.  462.    See  also  §  529,  ante. 

treated  of  in  ch.  XXV.  5  May  v.  Burk,  80  Mo.  675. 

-  Sargent  v.  St.  Louis  &  S.  F.  R,  Co.,  6  Moore  v.  Macon  Sav.  Bank,  22  App. 

114  Ma  348.  685. 

3  Fulkerson  v.  Mitchell,  82  Mo.  13.  7  44  Mo.  596. 

That  a  general  denial  by  one  de-  8  88  Mo.  60. 


§  550.]  THE   DENIAL.  2S9 

followed  in  Cohn  v.  Zehman,1  which  was  not  an  ejectment  case, 
but  was  an  action  on  an  injunction  bond.  And  in  both  the  cases 
last  cited  the  principle  laid  down  in  Nelson  v.  Brodhach  is  ap- 
proved, the  court  saying  in  the  latter  case  that  "it  may  be  con- 
sidered the  well-settled  doctrine  in  this  state  that  traverses  and 
answers  in  avoidance  may  go  together  when  not  inconsistent."2 
And  in  an  action  of  trespass  it  is  said  that  a  general  denial, 
a  justification  and  a  plea  of  the  statute  of  limitations  are  not 
inconsistent.3  But  where  a  suit  is  brought  to  enforce  a  con- 
tract for  the  purchase  of  land,  the  vendee  cannot  plead  the  stat- 
ute of  limitations,  which  would  rescind  the  contract  and  leave 
the  title  in  plaintiff,  and  at  the  same  time  insist  on  having  the 
contract  performed  by  a  delivery  to  him  of  a  deed  from  plaint- 
iff.4 When  the  answer  contains  both  a  general  denial  and  a 
special  plea,  the  denials  must  be  so  framed  as  to  leave  no  doubt 
in  the  mind  of  the  court  and  the  adverse  party  as  to  what  is  de- 
nied and  what  admitted.5 

§  550.  The  doctrine  further  illustrated. —  In  an  action  of 
slander,  pleas  of  justification  and  the  statute  of  limitations  may  be 
joined  with  a  general  denial.6  In  an  action  for  an  assault  and  bat- 
tery, the  plea  that  plaintiff  made  the  first  assault,  and  that  plaint- 
iff was  unlawfully  in  defendant's  dwelling  and  refused  to  leave, 
and  that  defendant  used  sufficient  force,  and  only  such  force  as 
was  necessary,  to  put  him  out,  may  be  joined  with  a  general  de- 
nial.7 In  an  action  of  ejectment  defendant  may  plead  a  general 
denial  and  rely  upon  that  as  a  complete  defense,  and  may  also  in 
the  same  answer  plead  and  rely  upon  an  equitable  defense;  but 
the  pleading  must  be  so  framed  as  to  show  that  both  defenses  are 
relied  on.8  Thus  a  general  denial  may  be  joined  with  the  plea  that 
plaintiff  obtained  the  land  in  question  by  purchase  at  a  trustee's 
sale  which  was  void.9  Where  the  answer  of  plaintiff  in  an  at- 
tachment suit  to  an  interplea  therein  is  a  general  denial,  with 
additional  averments  of  special  fraudulent  acts,  the  plaintiff  will 
not  be  confined  to  the  specified  acts  of  fraud,  but  may  under  the 
general  denial  introduce  evidence  relating  to  other  frauds  con- 
nected with  the  transaction.10 

193  Ma  574.  Cormick  v.  Kaye,  41  App.  263;  Nelson 

2  Id.,  p.  583.  v.  Wallace,  48  App.  193. 

a  McCormick  v.  Kaye,  41  App.  263.  7  Rhine  v.  Montgomery,  50  Mo.  566. 

*  Adair  v.  Adair,  78  Mo.  630.  8Ledbetter  v.  Led  better,  88  Mo.  60. 

5  Long  v.  Long,  79  Mo.  644.     Con-  9  Fisher  v.  Stevens,  143  Mo.  181. 
suit  also  §  527  et  seq.,  ante.  10  Simon  v.  Simcox,  75  App.  143. 

6  Wood  v.  Hilbish,  23  App.  389;  Mc-  In    this    connection  §  527  et  seq., 

Mo.  Code  Pl. 19  ante,  should  be  consulted. 


CHAPTER  XXI. 

THE  ANSWER  — WHAT  MAY  BE  SHOWN  UNDER  A  GENERAL 

DENIAL. 


§  551.  The  general  issue  and  the  gen- 
eral denial  compared. 
532.  Decisions  applying  the  above 

rules. 
553.  Illustrative  cases. 


564.  Showing  that  the  contract  is 

within  the  statute  of  frauds. 

565.  Where  the   petition    contains 

unnecessary  averments. 

566.  The  extent  of  the  rule. 


§  551.  The  general  issue  and  the  general  denial  compared. 

Having  shown  the  nature  of  a  general  denial  and  the  rules  gov- 
erning it,  and  having  determined  what  special  defenses  may  be 
joined  with  the  general  denial,  it  remains  to  consider  what  may 
be  shown  under  a  general  denial;  what  defenses  are  covered  by 
it,  and  the  character  of  the  proof  admissible  under  it.  And  here 
it  is  well  to  warn  the  reader  that  he  must  by  no  means  confound 
the  general  denial  of  the  Code  with  the  general  issue  known  to 
the  common  law.  Between  the  two  there  is  a  marked  distinc- 
tion. In  fact,  they  possess  little  in  common  except  the  adjective 
which  designates  them  both.  In  the  opinion  by  Bake  well,  J., 
in  Turner  v.  Thomas,1  I  find  a  clear  statement  of  this  distinction 
between  the  general  issue  at  common  law  and  the  general  denial 
under  the  Code.  He  points  out  that  evidence  which  would  have 
been  admissible  under  the  general  issue  in  common-law  plead- 
ings may  be  incompetent  under  our  general  denial.  Evidence 
which  confesses  the  original  liability  and  is  matter  in  avoidance 
was  largely  admitted  under  the  general  issue,  but  is  not  admis- 
sible under  the  general  denial.  Facts  which  support  the  denial 
need  not,  as  a  general  rule,  be  specially  pleaded  under  the  Code ; 
the  rule  being  that  new  facts  which  show  that  plaintiff's  state- 
ments are  untrue  may  be  proved  under  a  denial,  but  that  facts 
consistent  with  the  truth  of  plaintiff's  statements,  but  which 
show  that  he  has  nevertheless  no  cause  of  action,  are  new  mat- 
ter which  must  be  specially  pleaded.  What  is  apparently  new 
matter  may  be  admissible  under  a  general  denial  where  the  facts 
constituting  the  new  matter  do  not  confess  and  avoid,  but  tend 


1 10  App.  338. 


§  552.]       WHAT   MAY   BE   SHOWN   UNDER   GENERAL   DENIAL.  291 

to  disprove  the  allegations  of  the  petition.  Subsequently  the 
same  rule  is  announced  by  that  court  in  a  later  case,  the  court, 
speaking  through  Bond,  J.,  saying:  "Under  our  practice  act  the 
rule  is  that  all  defenses  which  do  not  disprove  the  allegations  nec- 
essary to  the  support  of  the  plaintiff's  case  must  be  affirmatively 
pleaded  in  the  answer." l 

§  552.  Decisions  applying  the  above  rules. —  That  this  view 
is  abundantly  supported  by  the  decisions  in  this  state  is  be}rond 
question.  Thus  it  has  been  repeatedly  held  that  under  the  com- 
mon law  anything  might  be  shown  under  the  plea  of  the  general 
issue  which  went  to  make  a  valid  defense;  but  under  the  Code, 
if  defendant  rests  his  defense  upon  any  fact  which  is  not  included 
in  the  allegations  necessary  to  the  support  of  the  plaintiff's  case, 
he  must  set  it  out  in  ordinary  and  concise  language,  or  he  will 
be  precluded  from  giving  evidence  of  it  at  the  trial.2  If  defend- 
ant intends  to  rely  upon  any  matter  which  goes  to  defeat  or  avoid 
plaintiff's  action,  he  must  set  it  forth.3  A  distinct  affirmative 
defense  cannot  be  given  in  evidence  under  a  general  denial.4  If 
the  contract  upon  which  the  cause  of  action  is  based  is  to  be  in- 
validated by  reason  of  some  extrinsic  matter,  such  matter  must 
be  pleaded.5  Evidence  of  facts  which  admit  the  act  charged,  but 
which  avoid  its  force  or  effect,  or  which  go  to  discharge  the 
obligation,  is  not  admissible  under  a  general  denial ;  for  under  a 
general  denial  the  defendant  is  not  permitted  to  show  any  fact 
which  does  not  go  directly  to  disprove  the  fact  denied.8  But  any 
evidence  is  admissible  which  tends  to  show  that  a  cause  of  action 
never  existed,  or  that  it  was  void  ah  initio?  If  a  cause  of  action 
which  once  existed  has  been  determined  by  some  matter  which 
subsequently  occurred,  such  new  matter  must  be  specially  pleaded ; 
but  if  the  cause  of  action  alleged  never  existed  the  appropriate 
defense  is  a  general  denial,  and  evidence  of  such  facts  as  tend  to 
prove  or  to  disprove  the  controverted  allegations  are  pertinent.8 
Under  the  general  denial  defendant  may  give  evidence  of  any- 

1  Scudder  v.  Atwood,  55  App.  512,        *  Muelrath  v.  Roemheld,  3  App.  564. 
521.  5  Meier  v.  Proctor,  81  App.  410. 

2  From  the  numerous  cases  announc-        6  Mize  v.  Glenn,  38  App.  98. 

ing  tliis  doctrine  I  cite  the  following:  7  Hoffman   v.   Parry,    23    App.   20; 

Northrup  v.  Miss.  Valley  Ins.  Co.,  47  Scudder  v.  Atwood,  55  App.  512;  Madi- 

Mo.  435;  Guinotte  v.  Ridge,  46  App.  son  v.  Mo.  Pac.  R.  Co.,  60  App.  599; 

254;  Musser  v.  Adler,  86  Mo.  445;  Hig-  Law  v.  Crawford,  67  App.  150. 

gins  v.  Mo.  Pac.  R.  Co.,  43  App.  547.  8Greenway  v.  James,  34  Mo.  326; 

3  Guinotte  v.    Ridge,   46  App.   254;  Hardwick  v.  Cox,  50  App.  509;  Thomas 
Musser  v.  Adler,  86  Mo.  445.  v.  Ramsey,  47  App.  84. 


292  THE    ANSWER.  [§  553. 

tiling  which  to  mis  to  show  that  at  the  institution  of  the  action 
plaintiff  had  no  title  to  the  matter  in  controversy,  or  no  right  to 
his  alleged  cause  of  action;  thus  defendant  may  show  fraud  in 
the  acquisition  of  plaintiff's  title,  or  that  ownership  was  in  a  third 
person.1  Defendant  is  entitled  to  make  any  proof  which  includes 
a  fact  within  the  terms  of  the  allegations  necessary  to  support 
the  plaintiff's  case.2  A  general  denial  of  the  making  of  a  con- 
tract puts  in  issue  every  fact  essential  to  the  original  creation  of 
the  obligation,  such,  for  example,  as  the  mental  capacity  of  the 
parties.3  It  logically  follows  from  the  above  principles  that  facts 
occurring  since  the  institution  of  the  suit  cannot  be  shown  under 
a  general  denial.4 

§  553.  Illustrative  cases. —  In  Madison  v.  Missouri  Pacific  B. 
Co.?  which  was  an  action  for  personal  injuries,  the  negligence 
alleged  was  a  failure  by  defendant  to  construct  and  maintain  a 
proper  farm  crossing,  by  reason  of  which  plaintiff,  while  passing 
over  the  crossing  with  a  load  of  hay,  was  injured  by  the  over- 
turning of  the  wagon.  The  answer  was  a  general  denial,  and 
defendant  proved  that  its  section  foreman  told  plaintiff  that  if  he 
wrould  inform  him,  the  foreman,  when  he  got  ready  to  haul  hay 
he  would  put  planks  on  the  inside  of  the  rails  at  the  farm  cross- 
ing so  as  to  make  it  safe,  but  that  plaintiff  did  not  inform  the 
foreman,  and  on  the  contrary  proceeded  to  haul  his  hay  without 
giving  any  notice  of  that  fact,  and  undertook  to  cross  the  track 
in  the  condition  in  which  it  then  was.  But  the  court  refused  an 
instruction  asked  by  the  defendant  based  on  this  evidence,  the 
ground  of  the  refusal  being  that  under  the  general  denial  such  an 
issue  could  not  be  raised.  In  reversing  the  judgment  for  the 
plaintiff,  Smith,  P.  J.,  says:  "The  defense  set  up  is  not  the  ter- 
mination by  subsequent  occurrences  of  a  once  subsisting  cause  of 
action,  but  it  is  a  denial  that  any  cause  of  action  ever  came  into 
existence,  in  consequence  of  the  arrangement  which  the  evidence 
tends  to  show  was  entered  into  between  plaintiff  and  defendant. 

'Thomas  v.  Ramsey,   47   App.   84;  4  Cato  v.  Hutson,  7  Mo.  142.  It  should 

Piano  Mfg.  Co.  v.  Cunningham,  73  App.  be  noted,  however,  that  this  decision 

376.     The  same  rule  applies  to  a  reply  rests  upon  a  special  statute,  although 

to  new  matter  contained  in  the  an-  there  can  be  no  doubt  of  the  correct- 

swer.     Flint-Walling  Mfg.  Co.  v.  Ball,  ness  of  the  doctrine,  independent  of 

43  App.  504  any  statute.    The  doctrine  is  recog- 

-'  1  loff  man  v.  Parry,  23  App.  20 ;  Hyde  nized  by  the  court  of  appeals  in  Piano 

v.  Hazel,  43  App.  868.  Mfg.  Co.  v.  Cunningham,  73  App.  376. 

3  Cavender  v.  Waddingham,  2  App.  &  60  App.  599. 
55L 


§§  554-5.]       WHAT   MAY   BE    SHOWN   UNDER   GENERAL   DENIAL.       293 

The  answer  does  not  confess  and  avoid,  but  denies  that  the  de- 
fendant owed  the  plaintiff  the  duty  for  the  breach  of  which  the 
action  is  brought.  The  facts  proved  under  the  defendant's  gen- 
eral denial  were  not  new  matter  constituting  a  defense,  but  they 
tended  to  disprove  the  allegations  of  the  petition.  They  showed 
that  the  defendant  did  not  owe  plaintiff  the  alleged  duty,  or,  in 
other  words,  that  defendant  had  been  relieved  of  that  duty  by 
the  arrangement  then  subsisting  between  it  and  the  plaintiff. 
The  tendency  of  the  evidence  was  to  show  that  the  alleged  duty 
was  suspended,  and  not  owing  to  the  plaintiff  at  the  time  of  the 
injury.  Under  the  general  denial  the  defendant  might  prove 
any  fact  which  went  to  show  plaintiff  never  had  a  cause  of  ac- 
tion against  it.  It  seems  to  us  defendant's  proof  included  a  fact 
within  the  terms  of  the  allegations  necessary  to  support  plaint- 
iff's case."    (p.  607.) 

§  554.  In  the  opinion  in  the  foregoing  case  the  learned  judge 
cites  a  decision  of  the  St.  Louis  court  of  appeals,1  which  fully 
sustains  the  position  taken.  There  the  action  was  to  recover  the 
value  of  certain  plans  and  specifications  for  ten  houses  furnished 
to  defendant  by  plaintiff,  who  was  an  architect,  and  the  answer 
was  a  general  denial.  The  defense  was  that  plaintiff  had  agreed 
with  defendant  to  make  the  plans  and  specifications,  and  to  ask 
no  compensation  therefor  unless  the  houses  were  actually  built, 
and  that  the  houses  never  were  built.  The  appellate  court  held 
that  the  evidence  was  admissible,  and  that  the  defense  did  not 
constitute  new  matter.  "  The  allegation  of  the  petition,"  says 
Bakewell,  J.,  "  is  that  defendant  made  a  certain  contract.  De- 
fendant does  not  admit  this;  he  denies  it,  and  endeavors  to  make 
good  his  denial  by  showing  that  the  contract  made  was  different 
in  terms  from  that  set  up  in  the  petition.  An  answer  setting 
up  new  matter  should  confess  and  avoid;  but  defendant  in  the 
present  case  does  not  confess  and  avoid,  but  denies  the  contract 
on  which  the  action  is  founded.  The  facts  tended  directly  to 
disprove  the  allegations  of  the  petition."     (p.  126.) 

§  555.  A  general  denial  puts  in  issue  the  facts  alleged  in  the 
petition,  but  not  the  liability.  The  facts,  if  any,  from  which  the 
law  draws  the  conclusion  of  non-liability  must  be  specifically  set 
out  in  the  answer,  if  they  are  not  stated  in  the  petition.2  Where 
an  attachment  against  a  landlord  is  served  on  the  growing  crops 
in  possession  of  his  tenant,  evidence  offered  at  the  trial  that  the 

1  Stewart  v.  Goodrich,  9  App.  125.  2  Musser  v.  Adler,  86  Mo.  445. 


294  the  answer.  [§§  556-558. 

sheriff  bad  subsequently  turned  over  part  of  the  attached  crop 
to  the  landlord  is  not  admissible  under  a  general  denial  to  the 
tenant's  interplea,  since  that  was  a  matter  occurring  after  the 
institution  of  the  attachment,  and  must  be  raised  by  a  special 
plea.1  So  in  an  action  brought  under  the  statute  to  recover 
money  lost  at  gaming,  any  matter  of  defense  arising  subsequently 
to  the  filing  of  the  plea  cannot  be  given  in  evidence  under  a  gen- 
eral denial.2 

|  556.  It  cannot  be  shown  under  a  general  denial  that  a  pro- 
vision of  the  constitution  has  been  violated.  Thus,  if  the  right 
of  plaintiff  to  relief  depends  upon  the  validity  of  certain  bonds, 
it  cannot  be  shown,  unless  specially  pleaded,  that  the  bonds  were 
issued  in  violation  of  section  8  of  article  XII  of  the  Missouri  con- 
stitution, relating  to  the  issue  of  bonds  by  a  corporation.3  Where 
the  answer  of  defendant  alleges  compliance  with  the  interstate 
commerce  law  of  the  United  States,  and  the  reply  is  a  general  de- 
nial, the  validity  of  that  federal  statute  is  not  drawn  in  question ; 
since  the  reply  puts  in  issue  only  the  averment  of  compliance  with 
the  law,  and  not  the  validity  of  the  law.4 

§  557.  In  an  action  on  a  bond  the  plea  of  non  est  factum  puts 
in  issue  only  the  execution  of  the  bond.5  Defendant  cannot  show 
under  that  plea  that  the  bond  sued  on  was  a  stake  to  be  put  up 
by  him  against  a  similar  bond  by  the  plaintiff,  as  a  wager  upon 
the  result  of  an  election.  Such  a  defense  must  be  specially  pleaded.6 
"When  a  deed  is  void  ab  mitio,  and  is  not  merely  voidable,  a  plea 
of  non  est  factum  is  proper,  and  under  such  plea  any  facts  show- 
ing the  conveyance  to  be  void  may  be  given  in  evidence.7 

§  558.  In  an  action  upon  a  promissory  note  given  in  payment 
of  rent,  defendant  set  up  that  plaintiff  promised,  in  consideration 
of  a  surrender  of  the  leasehold  upon  which  defendant  had  made 
certain  improvements,  to  pay  for  the  improvements.  It  was  held 
that  this  meant  a  payment  forthwith  and  in  money,  and  that 
under  a  general  denial  in  the  reply  plaintiff  had  the  right  to 
prove  that  he  agreed  that  the  improvements  should  be  paid  in 
the  rents  accruing  subsequent  to  the  note,  or  be  deducted  from 
such  rents.8 

i  Piano  Mfg.  Co.  v.  Cunningham,  73  4  Vaughn  v.  Wabash  R.  Co.,  145  Mo. 
App.  376.  57. 

-  Cato  v.  Hutson,  7  Mo.  142.  5  state  to  use  v.  Ferguson,  9  Mo.  285. 

3  German  Savings  Inst  v.  Jacoby,  97        6  Stapleton  v.  Benson,  8  Mo.  13. 
Mo.  617.  7  Corby  v.  Weddle,  57  Mo.  452. 

8  Wilkerson  v.  Farnham,  82  Mo.  672. 


§§  559-63.]       WHAT  MAY  BE    SHOWN    UNDER   GENERAL   DENIAL.      295 

§  559.  In  an  action  for  the  wrongful  taking  and  conversion  of 
a  stock  of  goods,  evidence  is  admissible  under  a  general  denial 
to  show  that  the  mortgage  under  which  plaintiff  claimed  was 
fraudulent  and  void  as  to  the  creditors  of  the  mortgagor.1  Where 
in  an  attachment  suit  an  interplea  is  filed,  and  the  interpleader 
alleges  generally  his  ownership  of  the  attached  property  and  con- 
sequent right  of  possession,  and  the  plaintiff  in  the  attachment 
suit  puts  these  allegations  in  issue  by  a  general  denial,  any  proof 
on  the  part  of  the  plaintiff  which  goes  to  show  that  the  inter- 
pleader, at  the  time  the  property  was  levied  on  under  the  attach- 
ment, was  not  the  actual  owner  and  was  not  entitled  to  the 
possession,  is  admissible,  even  though  it  extends  to  the  question 
of  fraud  in  the  acquisition  of  the  interpleader's  title,  or  goes  to 
show  that  the  ownership  was  in  a  third  party.2  In  an  action  by 
a  wife  to  recover  money  which  her  husband  had  stolen  from  her 
and  had  delivered  to  defendant,  if  the  plaintiff  by  her  evidence 
assails  the  good  faith  of  defendant,  defendant  may  show  that  he 
received  the  money  in  good  faith,  even  though  he  has  made  no 
such  averment  in  his  answer.3 

§  560.  Where  an  action  is  brought  to  enforce  a  mechanic's  lien 
and  defendant  relies  upon  a  special  contract  between  him  and 
plaintiff,  he  must  set  up  such  contract  and  the  breach  of  it  as  a 
special  defense ;  such  defense  cannot  be  shown  under  a  general 
denial.4 

§  561.  If  it  becomes  necessary,  in  order  to  support  plaintiff's  case, 
that  he  should  prove  the  execution  of  a  power  of  attorney  by  de- 
fendant, and  that  the  money  for  which  the  action  is  brought  was 
paid  to  such  attorney,  it  is  competent  for  defendant,  under  a  gen- 
eral denial,  to  show  how  the  power  of  attorney  came  to  be  exe- 
cuted, that  it  was  done  through  another  party  as  one  of  the 
necesssary  steps  in  the  collection  of  the  money,  that  he  had  no 
recollection  that  the  power  was  executed,  and  that  he  never  knew 
that  a  payment  had  been  made  to  the  attorney  in  fact.5 

§  562.  In  an  action  for  flooding  plaintiff's  land  defendant  can- 
not, under  a  general  denial,  show  that  such  a  flooding  was  a  bene- 
fit to  plaintiff.6 

§  563.  Where  the  action  is  to  recover  the  price  of  a  specific  lot 
of  grain  which  plaintiff  claimed  to  have  sold  to  defendant,  and 

i  Hardwick  v.  Cox,  50  App.  509.  4  Meyer  v.  Broadwell,  83  Mo.  571. 

'>■  Piano  Mfg.  Co.  v.  Cunningham,  73  5  Hoffman  v.  Parry,  23  App.  20. 

App.  376.  6  Mize  v.  Glenn,  38  App.  98. 
3  Courtial  v.  Lowenstein,  78  App.  485. 


296  tiie  answee.  [§§  564,  5G5. 

the  answer  is  a  general  denial,  since  plaintiff  must  make  out 
not  only  the  sale,  but  also  the  delivery  of  the  grain,  defendant 
may,  under  such  denial,  give  evidence  of  anything  which  would 
tend  to  disprove  either  of  those  facts.  Thus,  he  may  show  that 
the  wheat  which  he  bought  was  good  wheat,  while  the  wheat 
delivered  to  him  by  plaintiff  was  spoiled  and  damaged.1 

§  5G1.  Showing  that  the  contract  is  within  the  statute  of 
frauds. —  It  follows  from  the  principles  laid  down  above  that 
the  statute  of  frauds  may  be  shown  in  defense  of  an  action  on  a 
contract,  though  it  is  not  specially  pleaded,  since  it  is  for  plaint- 
iff to  prove  that  the  contract  on  which  he  sues  is  one  which  is 
legally  binding.2 

§  565.  Where  the  petition  contains  unnecessary  averments, 
Not  infrequently  the  petition,  either  through  oversight  or  de- 
sign, contains  allegations  of  fact  which  are  under  the  strict  rules 
of  pleading  unnecessary  to  the  plaintiff's  case.  It  then  becomes 
an  important  question  whether  plaintiff  is  bound  to  prove  such  un- 
necessary averments,  and  whether  defendant  can  under  a  general 
denial  introduce  evidence  to  disprove  them,  though  they  may  be 
of  such  a  nature  that  they  could  not  ordinarily  be  shown  under  a 
general  denial.  I  think  the  current  of  authority  in  the  states 
which  have  adopted  the  code  system  is  that  such  proof  may  be 
made  by  the  defendant  in  such  a  contingency.  But  such  is  not 
the  view  taken  by  our  own  courts,  at  least  in  the  more  recent 
decisions.  In  Karle  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.?  it 
was,  indeed,  held  that  the  plaintiff  by  making  such  an  unneces- 
sary averment  puts  in  issue  the  fact  unnecessarily  alleged.  That 
was  an  action  against  a  railroad  company  for  the  killing  of 
plaintiff's  husband.  The  allegation  of  the  petition  was  that  "  the 
killing  was  done  by  the  negligence  of  defendant,  without  any 
negligence  or  fault  of  the  plaintiff's  husband."  The  answer  was 
a  general  denial.  It  was  held  that  by  this  general  denial  the 
issue  was  raised  whether  the  deceased  had  been  guilty  of  con- 
tributory negligence,  a  defense  which  is  under  our  decisions  an 
affirmative  one.  But  this  decision  has  been  repudiated  in  Hud- 
son v.  Wabash  Western  J2.  Co}  In  that  case,  too,  the  petition 
alleged  that  the  plaintiff  was  injured  "  without  any  fault  on  his 
part,"  and  defendant  interposed  a  general  denial,  as  in  the  pre- 

1  Montgomery  v.  Gann,  51  App.  187.  works  Co.,  74  App.  273;  Hillman  v. 

2Hackett  v.    Watts,    138   Mo.   502;  Allen,  145  Mo.  638.     See  §  592,  post. 

Porter  v.  Citizens'  Bank,  73  App.  513;  355  Mo.  476. 

State  ex  rel.  v.  Cape  Girardeau  Water-  4 101  Ma  13. 


§  565.]        WHAT    HAY    BE    SHOWN    UNDER    GENERAL    DENIAL.  297 

ceding  case.  The  court,  in  deciding  that  the  defense  of  con- 
tributory negligence  was  not  raised  by  the  answer,  declared  that 
the  utterance  in  Karle  v.  Railroad1  "  was  only  ohiter,  and  should 
not  be  regarded  as  possessing  any  authoritative  value.2  The 
rule  in  this  state  undoubtedly  is  that,  if  facts  alleged  in  the  pe- 
tition are  unnecessary  to  sustain  the  plaintiff's  case,  they  are 
merely  surplusage,  and  though  in  his  answer  defendant  denies 
them  he  will  not  be  allowed  to  introduce  evidence  in  regard  to 
them,  unless  he  sets  out  the  facts  constituting  his  defense  spe- 
cifically. Thus,  where  in  a  suit  upon  a  special  tax-bill  plaintiff 
alleges  that  the  work  was  well  and  faithfully  done,  and  the  an- 
swer is  simply  a  general  denial,  such  allegation  being  unneces- 
sary to  a  good  petition,  defendant  will  not  be  allowed  to  show 
under  his  general  denial  the  imperfect  character  of  the  work 
done.3  The  case  of  Hyde  v.  Hazel 4  was  decided  on  the  authority 
of  Hudson  v.  Railroad?  The  petition  contained  an  averment 
that  "  there  is  due  plaintiff  the  sum  of  two  hundred  and  fifty 
dollars."  It  was  claimed  by  defendant  that  this  allegation, 
though  unnecessary  to  the  proper  statement  of  plaintiff's  case, 
yet  when  met  by  a  general  denial  would  let  in  evidence,  such  as 
payment,  going  to  show  that  such  sum  was  not  due  him.  But 
the  court  held  that  this  position  was  erroneous.  It  is  said  in  the 
opinion  that  the  case  of  Bogie  v.  Nolan*  which  at  first  blush 
would  seem  to  countenance  a  different  doctrine,  was  decided 
upon  the  peculiar  facts  of  that  case.  There  the  allegation  of  the 
petition  was  that  defendant's  intestate  for  a  valuable  considera- 
tion executed  and  delivered  to  plaintiff  the  notes  upon  which  the 
action  was  based,  and  the  answer  was  a  general  denial.  The 
supreme  court  stated  the  well  known  rule  that  ordinarily  it  is 
sufficient,  in  an  action  on  a  promissory  note,  to  state  merely  its 
execution  and  plaintiff's  ownership;  and  that  if  the  note  has  been 
paid,  defendant  must  plead  that  fact.  But  here  plaintiff  stood 
in  a  confidential  relation  to  the  deceased,  and  the  court  held 
that  it  was  incumbent  on  him  to  prove  not  only  that  the  de- 
ceased executed  the  notes,  but  that  they  were  given  to  him  in 
good  faith  and  that  the  deceased  received  value  for  them.  And 
for  that  reason,  and  for  that  alone,  the  decision  was  that  under 
a  general  denial  it  could  be  shown  that  the  maker  of  the  notes 
did  not  in  fact  receive  any  consideration  for  them. 

1 55  Mo.  476.  3  Guinotte  v.  Ridge,  46  App.  254. 

2  Sections  101  and  102  of  chapter  V  *  43  App.  668. 

should  be  consulted  in  this  connec-  8 101  Mo.  13. 

tion.  s  96  Mo.  85. 


298  THE   ANSWER.  [§  566. 

§  566.  The  extent  of  the  rule.— But  the  rule  does  not  ex- 
tend to  a  case  where  the  averment  in  the  petition  is  a  material 
and  necessary  one.  For  while  it  is  generally  true  that  in  an  ac- 
tion to  recover  money  the  defense  of  payment  is  not  admissible 
under  a  general  denial,  yet  where  the  fact  of  non-payment  is 
stated  in  the  petition  as  a  necessary  and  material  averment  to 
constitute  plaintiff's  cause  of  action,  a  general  denial  will  be 
sufficient  to  permit  defendant  to  show  a  payment ; '  and  the  same 
principle  is  clearly  recognized  in  Wheeler  &  Wilson  Mfg.  Go.  v. 
TmsUy?  The  Peterson  case  was  an  action  brought  on  a  constable's 
bond  for  fees  which  it  was  alleged  the  defendant  collected  as 
constable  and  refused  to  pay  over  to  plaintiff,  the  justice  of  the 
peace.  The  evidence  showed  the  collection  of  the  fees,  and 
plaintiff  denied  that  they  had  been  paid  over.  Under  the  general 
denial  defendant  offered  to  show  full  payment,  but  was  not  per- 
mitted to  do  so.  This  was  held  by  the  supreme  court  to  be 
error,  since,  in  order  that  plaintiff  should  recover,  it  was  neces- 
sary for  him  to  prove  not  only  the  collection  of  the  fees  by  the 
constable,  but  that  demand  of  payment  had  been  made  on  him 
and  that  such  demand  was  refused,  and  each  of  these  issues  was 
met  by  the  general  denial.1 

*  State  ex  reL  v.  Peterson,  142  Mo.  526.   2  75  Mo.  45a 


CHAPTER  XXII. 


THE  RULES  AS  TO  WHAT   MAY  BE  SHOWN  UNDER  A  GENERAL 
DENIAL  APPLIED  TO  SPECIFIC  ISSUES  AND  PROCEEDINGS. 


§  567. 

Right  of  plaintiff  to  sue. 

§  598. 

Same  —  Action    by  pretermit- 

568. 

Matters  of  excuse  or  justifica- 

ted heirs. 

tion. 

599. 

Same — Where     title    comes 

569. 

Jurisdiction. 

through  deed  of  trust. 

570. 

Incorporation. 

600. 

Same  —  Outstanding  equities. 

571. 

Estoppel 

601. 

In  an  action  for  homicide. 

572. 

Ratification. 

602. 

The  issue  of  infancy. 

57a 

In  actions  based  upon  statute 

603. 

In  actions    between    landlord 

or  ordinance. 

and  tenant. 

574 

Former  recovery. 

604 

Showing  a  bar  by  limitation. 

575. 

Waiver. 

605. 

Avoiding  plea  of  the  statute  of 

576. 

Adequate  remedy  at  law. 

limitations. 

577. 

Showing  fraud  or  illegality. 

606. 

In  actions  for  malicious  prose- 

582. 

Fraud  or  illegality  —  Actions  in 

cution. 

replevin. 

607. 

In  actions  between  employer 

584. 

Agency. 

and  employee. 

585. 

Alteration. 

608. 

In  mechanics'  lien  suits. 

586. 

Assignment. 

609. 

In  actions  for  negligence. 

587. 

In  actions  on  bills  and  notes. 

610. 

In  actions  against  officers. 

588. 

In  actions  on  bonds. 

611. 

Payment  or  tender. 

589. 

In  actions  against  carriers. 

613. 

In  actions   for   personal  inju- 

590. 

In  actions  on  contracts. 

ries. 

592. 

Showing  that  the  contract  is 

614 

Purchaser  for  value. 

void  under    the    statute   of 

615. 

In  a  proceeding  to  quiet  title. 

frauds. 

616. 

In  actions  against  railroad  com- 

593. 

Contracts  —  Showing  custom. 

pany. 

594 

Proving  damages. 

617. 

In  replevin. 

595. 

In  actions  of  ejectment. 

619. 

In  cases  of  sale. 

596. 

Same  —  Attacking    deed    for 

620. 

In  actions  on  tax-bills. 

fraud. 

621. 

In  actions  for  trespass. 

597. 

Same  —  Showing  the  deed   is 
an  escrow. 

§  567.  flight  of  plaintiff  to  sue.— If  defendant  desires  to  show- 
that  plaintiff  has  no  interest  in  the  suit  because  he  has  assigned 
the  cause  of  action  and  all  his  interest  in  it,  this  must  be  affirm- 
atively pleaded,  and  cannot  be  shown  under  a  general  denial.1 

iGoetz  v.  Ambs,  27  Mo.  28. 


300  THE  ANSWER.  [§§  568-572. 

But  defendant  may  show  under  a  general  denial  a  want  of  ca- 
pacity in  the  plaintiff  to  sue.  Therefore  an  allegation  in  the 
petition  that  plaintiff  is  an  administrator  of  an  estate  is  put  in 
issue  by  a  general  denial.1 

§  568.  Matters  of  excuse  or  justification. —  Under  a  general 
denial  in  an  action  for  assault  and  battery,  the  defendant  cannot 
introduce  evidence  tending  to  prove  a  justification  of  the  assault.2 
Matters  of  excuse  or  justification  for  a  failure  to  acknowledge 
satisfaction  of  a  deed  of  trust  or  mortgage  as  required  by  the 
statute  must  be  specially  pleaded  and  cannot  be  shown  under  a 
general  denial.3  In  actions  for  libel  or  slander,  justification  may 
be  pleaded  in  connection  with  a  general  denial,4  and  therefore 
must  be  specially  pleaded. 

§  569.  Jurisdiction. —  In  an  action  on  a  foreign  judgment  the 
jurisdiction  of  the  court  rendering  the  judgment  is  put  in  issue 
by  a  general  denial,  but  the  merits  of  the  judgment  are  not.5 
And  it  may  be  shown  under  a  general  denial  that  the  appearance 
of  one  who  purported  to  be  an  attorney  for  the  defendant  was 
unauthorized.6 

§  570,  Incorporation. —  Where  the  action  is  brought  by  a 
corporation,  a  general  denial  goes  to  the  merits,  and  admits  the 
corporate  capacity  of  the  plaintiff  and  its  ability  to  sue.7  But 
a  general  denial  puts  in  issue  the  incorporation  of  the  plaintiff 
where  the  incorporation  is  not  by  public  act,  and  where  the  suit 
is  not  upon  a  contract  made  with  the  plaintiff  under  the  name 
by  which  it  sues.8 

§  571.  Estoppel. —  An  estoppel  must  be  specially  pleaded;  it 
cannot  be  shown  under  a  general  denial.9 

§  572.  Ratification. —  It  cannot  be  shown  under  a  general  de- 
nial that  an  act  which  was  originally  unauthorized  has  been 
ratified  by  the  party  sought  to  be  held ;  in  order  to  let  in  proof 
of  a  ratification  it  must  be  specially  pleaded.10 

1  Gilmore  v.  Morris,  13  App.  114  8  Girls'  Industrial  Home  v.  Fritchey, 
See  also  §  570,  post.  10  App.  344. 

2  Thomas  v.  Werremeyer,  34  App.  9  Bray  v.  Marshall,  75  Mo.  327;  Noble 
665;  Sloan  v.  Speaker,  63  App.  321.  v.  Blount,  77  Mo.  235;  Tyler  v.  Tyler, 

■'  Wiener  v.  Peacock,  31  App.  238.  78  App.  240. 

4  See  §  549,  ante.  *<>  Capital  Bank  v.  Armstrong,  62  Mo. 

5  Crone  v.  Dawson,  19  App.  214.  59;  Wade  v.  Hardy,  75  Mo.  394;  Noble 
e  Hays  v.  Merkle,  67  App.  55.  v.  Blount,  77  Mo.  235;  Ferneau  v. 
'  Farmers'  Bank  v.  Williamson,  61  Whitford,  39  App.  311. 

Mo.  259. 


§§   573-6.]        WHAT   MAT   BE    SHOWN    UNDER    GENERAL    DENIAL.       801 

§  573.  In  actions  based  upon  statute  or  ordinance. —  Where 
plaintiff  seeks  to  recover  for  injuries  caused  by  the  running  of  a 
train  within  the  limits  of  a  city  at  a  speed  prohibited  by  the  or- 
dinance of  such  city,  defendant  cannot,  under  the  general  denial, 
introduce  evidence  of  the  unreasonableness  of  the  ordinance.1 
Municipal  ordinances  are  presumptively  valid;  and  in  street- 
opening  proceedings  facts  showing  their  invalidity  must  be  spe- 
cially pleaded.2 

§  571.  Former  recovery. —  In  a  case  decided  before  the  adop- 
tion of  the  practice  act,  it  was  held  that  a  former  recovery  may 
be  given  in  evidence  under  the  plea  of  non  assumpsit} 

§  575.  Waiver. — -Where  the  petition  avers  that  a  certain  rule 
of  a  railroad  company  has  been  violated,  a  general  denial  puts 
in  issue  only  the  fact  of  the  violation  of  the  rule ;  if  it  is  desired 
to  raise  the  issue  of  a  waiver  or  abandonment  of  the  rule,  that 
fact  must  be  pleaded.4 

§  576.  Adequate  remedy  at  law. —  We  have  seen,  in  consid- 
ering the  essential  averments  of  a  good  petition,  that  in  a  bill 
for  an  injunction  it  must  be  made  to  appear  that  the  plaintiff 
has  no  adequate  remedy  at  law.5  Whether  it  is  necessary  for 
the  defendant  in  equity  to  specifically  set  up  the  defense  that 
plaintiff  has  an  adequate  remedy  at  law  is  a  question  which  has 
been  variously  decided  in  this  state.  If  the  case  made  by  plaint- 
iff shows  that  he  has  an  adequate  remedy  at  law,  his  bill  will  be 
dismissed,  whether  defendant  has  pleaded  that  fact  or  not.6  The 
earlier  decisions  are  to  the  effect  that  defendant  will  not  be  al- 
lowed to  show  that  fact  unless  it  is  set  up  in  the  answer.7  But 
in  Humphreys  v.  Atlantic  Milling  Co.,6  Judge  Black  reviews  the 
question  and  says  that  under  the  Code  the  plea  of  adequate  rem- 
edy at  law  has  no  place,  and  he  holds  that  the  defense  may  be 
shown  under  a  general  denial.  This  decision  was,  upon  a  re- 
hearing, concurred  in  by  all  the  judges  present.  It  is  expressly 
stated  in  the  opinion  that  the  decisions  last  cited,7  as  well  as  that 
of  Harper  v.  Bosenberger,9  are  no  longer  of  binding  authority. 

i  Bluedorn  v.  Mo.   Pac.  R.  Co.,  121  "  See  §  484,  ante. 

Mi  >.  258.  6  Humphreys  v.  Atlantic  Milling  Co., 

-  St.  Louis  v.  Gleason,  15  App.  25.  98  Mo.  542. 

3  Hempstead  v.  Stone,  2  Mo.  65.  '  Blair  v.  Chicago  &  Alton  R.  Co.,  89 

4  Alcorn  v.  Chicago  &  Alton  R.  Co.,  Mo.  383;  Shickle  v.  Watts,  94  Mo.  410. 
108  Mo.  81.     That  under  some  circum-  856  App.  388;  and  necessarily  the 
stances  a  waiver  may  be  shown  under  earlier  court  of  appeals  decision  in 
a  general  denial  in  an  action  of  re-  Luecke  v.  Tredway,  45  App.  507. 
plevin  is  held  in  Oester  v.  Sitlington, 

115  Mo.  247. 


302  THE   ANSWEK.  [§  577. 

Therefore  it  must  now  be  considered  settled  that  defendant  may, 
under  a  general  denial,  show  that  plaintiff  has  an  adequate  rem- 
edy at  law.  This  question  came  before  the  full  bench  of  the 
supreme  court  in  Verdin  v.  St.  Louis}  That  case  was  decided  by 
a  divided  court,  and  the  point  is  not  discussed  in  the  opinion  of 
the  majority.  But  in  the  minority  opinion2  it  is  held  that  where 
a  suit  in  equity  is  filed  by  an  abutting  property  owner  to  cancel 
a  tax-bill,  and  to  divest  the  lien  thereof,  if  the  tax-bill  has  been 
issued,  or,  if  it  has  not  been  issued,  to  enjoin  its  issuance,  the  pe- 
tition must  affirmatively  show  on  its  face  by  a  particular  state- 
ment of  facts,  as  distinguished  from  legal  conclusions  and  gen- 
eral allegations  of  fraud,  that  the  plaintiff  has  no  adequate  and 
complete  remed}^  at  law ;  that  such  showing  is  a  jurisdictional 
necessity,  and  the  failure  to  show  it  may  at  any  time,  or  at  any 
stage  of  the  proceedings,  be  taken  advantage  of  by  the  court  of 
its  own  motion,  or  by  the  defendant,  whether  or  not  the  defense 
has  been  pleaded.  If  the  tax-bill,  together  with  the  contract  for 
the  work,  are  set  out  in  the  petition  and  are  averred  to  be  null, 
void  and  of  no  effect,  and  it  is  further  alleged  that  plaintiff's 
property  cannot  in  any  manner  be  legally  bound  for  the  tax  be- 
cause the  ordinance  under  which  the  work  was  done  was  con- 
trary to  the  charter,  and  if  it  appears  that  all  this  is  matter  of 
record,  there  is  disclosed  an  adequate  remedy  at  law  by  a  defense 
to  an  action  on  the  tax-bill,  or  by  a  writ  of  certiorari. 

§  577.  Showing  fraud  or  illegality. —  The  question  whether 
under  a  general  denial  defendant  may  show  that  the  contract 
was  fraudulent,  illegal  or  contrary  to  public  policy  has  been  be- 
fore our  courts  in  several  instances,  and  the  answer  to  it  has  not 
been  entirely  uniform.  It  would  seem  that  the  principle  upon 
which  it  is  to  be  determined  what  evidence  is  admissible  under  a 
general  denial  should  be  the  one  laid  down  in  Greenway  v.  James3 
that  where  a  cause  of  action  which  once  existed  has  been  deter- 
mined by  some  matter  subsequently  transpiring,  such  new  mat- 
ter must  be  specially  pleaded,  but  where  the  cause  of  action 
alleged  never  existed,  the  appropriate  defense  would  be  a  denial 
of  the  allegations  of  the  petition,  and  under  such  denial  such 
facts  as  tend  to  disprove  the  existence  of  the  contract  will  be 
pertinent.4  Thus,  it  has  been  held  in  an  action  on  a  note  that 
defendant  may  show  under  a  general  denial  that  his  signature  to 

U31  Mo.  26.  3  34  Mo.  326,  328. 

2  Written  by  Sherwood,  J.,  and  con-        4  See  also  ch.  XXL 
curred  in  by  Brace  and  Robinson,  JJ. 
See  p.  105  et  seq. 


§  577.]        WHAT   MA.T    BE    SHOWN    UNDER   GENERAL    DENIAL.  303 

the  note  was  procured  by  fraud.1  An  application  of  this  prin- 
ciple to  cases  of  illegality  would  naturally  lead  to  the  same 
conclusion,  namely,  that  it  could  be  shown  under  a  general  de- 
nial that  the  contract  sued  on  was  void  in  its  inception  on  account 
of  illegality  or  because  of  being  contrary  to  public  policy.  But 
such  is  not  the  weight  of  authority  in  this  state.  Among  the 
earlier  cases  in  which  the  question  was  considered  is  that  of  Moore 
v.  Bingo,2  where  under  a  general  denial  the  defendant  attempted 
to  show  that  the  contract  sued  on  was  champertous.  The  court 
held  that  this  could  not  be  allowed,  saying:  "A  general  plea  of 
want  of  consideration,  or  failure  of  consideration,  has  alwa}Ts 
been  admissible,  but  where  the  defense  is  that  the  real  consider- 
ation is  an  illegal  one,  the  facts  constituting  the  illegality  must 
be  set  forth."  (p.  473.)  So,  in  Musser  v.  Adler*  the  defense 
which  was  sought  to  be  introduced  was  that  the  services  rendered 
by  plaintiff  were  illegal  and  contraiy  to  public  policy,  and  the 
court  says :  "  This  defense,  so  far  as  pleading  is  concerned,  is  not 
unlike  that  of  champerty,  gaming,  usury,  and  the  like;  it  is  an 
affirmative  defense,  and  should  be  clearly  and  distinctly  stated." 
(p.  449.) 4  In  St.  Louis  Agricultural  &  Mechanical  Ass'n  v.  De- 
lano? the  court,  following  the  preceding  decisions,  sets  forth  more 
fully  the  reason  for  its  conclusion.  It  says,  speaking  through 
Sherwood,  J. :  "  There  is  nothing  on  the  face  of  the  petition 
which  indicates  any  other  than  a  valid  contract  between  plaintiff 
and  defendant;  and  when  this  is  the  case  the  rule  is  that,  if  the 
contract  is  to  be  invalidated  by  reason  of  some  extrinsic  matter, 
such  matter  must  be  pleaded  in  order  that  it  be  made  issuable 
at  the  trial."  And  it  holds  that  a  general  denial  is  not  suffi- 
cient to  let  in  the  proof.  But  this  is  not  purely  a  question  of 
what  the  averments  of  the  petition  are ;  for  the  court  says,  in 
School  District  v.  Sheidley?  that  the  rule  is  that  if  a  plaintiff,  in 
order  to  make  out  his  cause  of  action,  is  required  to  show  that 
the  contract  sued  upon  is  for  any  reason  illegal,  the  court  should 
not  enforce  it,  whether  the  illegality  is  pleaded  as  a  defense  or 
not ;  but  that  when  the  illegality  does  not  appear  from  the  contract 
itself,  or  from  the  evidence  necessary  to  prove  it,  but  depends 
upon  extraneous  facts,  the  defense  is  new  matter  and  must  be 
pleaded.7 

i  Corby  v.  Weddle,  57  Mo.  452.  » 108  Mo.  217. 

2  82  Mo.  468.  « 138  Mo.  672. 

3  86  Mo.  445.  7  And  the  court  again   states  this 

4  See  a  decision  to  the  same  effect  rule  in  McDearmott  v.  Sedgwick,  140 
by  the  Kansas  city  court  of  appeals,  Mo.  172. 

§  580,  post,  n.  5,  p.  307. 


304  THE  ANSWER.  [§§  578,  579. 

§  578.  There  is  one  decision  of  the  supreme  court  which  is  di- 
rectly opposed  to  the  foregoing,  and  which  fully  applies  the  prin- 
ciple announced  in  Green/way  v.  James,  sitpra.1  It  is  the  case  of 
Spragm  v.  Rooney?  which  was  a  proceeding  in  equity  to  compel 
the  specific  performance  of  a  contract  for  the  sale  of  a  house  and 
lot.  The  defense  was  that  the  contract  of  sale  was  in  effect  a 
.  and  was  put  in  the  form  of  a  sale  in  order  to  evade  the 
statute  forbidding  the  leasing  of  premises  for  a  bawdy-house. 
The  answer,  however,  was  a  general  denial,  and  under  this  denial 
defendant  sought  to  prove  the  above  fact.  The  supreme  court  held 
that  the  evidence  was  admissible,  on  the  ground  that  the  effect 
of  the  general  denial  was  to  deny  that  there  was  any  legal  con- 
tract in  existence.  And  the  court  cites  among  other  cases  that 
of  Green  voa/y  v.  James,  and  also  Young  v.  Glascock,3  which  an- 
nounces the  same  rule. 

§  579.  The  same  lack  of  harmony  is  found  in  the  decisions  of 
the  two  courts  of  appeals.  The  question  came  before  the  St.  Louis 
court  of  appeals  in  18S5,4  when  the  court,  speaking  through 
Rombauer,  J.,  impliedly  adopts  the  rule  laid  down  in  the  Green- 
way  and  Young  cases,  supra.  There  is  an  earlier  decision  of  that 
court  to  substantially  the  same  effect,  it  being  held  that  whero 
an  action  is  brought  on  an  indemnity  bond  given  to  the  sheriff, 
and  the  answer  is  a  general  denial,  accompanied  with  a  special 
allegation  that  the  property  belonged  to  the  execution  debtor, 
it  is  competent  to  show  that  the  sale  under  which  the  plaintiff 
claims  was  void  as  being  in  fraud  of  creditors.5  In  the  next  de- 
cision of  that  court,  in  a  case  coming  before  it  in  the  next  year,6 
the  question  was  whether  the  illegality  of  a  contract  might  be 
proved  under  a  general  denial.  There  the  court,  speaking  through 
Lewis,  P.  J.,  repudiates  the  doctrine  laid  down  in  the  Greenwag 
and  Young  cases,  or  at  least  denies  the  application  of  that  doc- 
trine to  the  case  in  hand.  He  says  that  "  the  broad  generality 
of  the  declaration  went  far  beyond  the  question  under  considera- 
tion "  in  those  cases,  and  that  the  language  used  in  the  Green- 
vi g  case  was  only  a  dictum.  He  adds  that  "  the  authorities 
elsewhere  are  unanimous  against  the  introduction  under  a  general 
denial  of  evidence  to  prove  illegality  in  the  contract  sued  on  as 
a  defense  against  it."     It  will  be  observed  that  in  this  case6  the 

134  Mo.  326.  5  State  ex  rel.  v.  Stark,  10  App.  591. 

2 104  Mo.  349.  But  the  case  is  not  reported  in  full. 

3  79  Mo.  574.  6  Cummiskey  v.  Williams,  20  App. 

4  Stern   Auction  Co.   v.   Mason,   16     606. 
App.  473. 


§  580.]       WHAT   MAY   BE    SHOWN   UNDER   GENERAL   DENIAL.  305 

question  was  one  of  proving  illegality  under  a  general  denial, 
and  not  fraud,  as  in  the  case  decided  in  1885.1  But  in  the  case  of 
Claflin  v.  Sommers,2  decided  in  1889,  the  question  was,  as  in  the 
first  case,  whether  fraud  could  be  shown  under  a  general  denial, 
and  the  court  there,  speaking  again  through  Kombauer,  J.,  de- 
clined to  follow  the  Mason  case,  and  held  that  the  evidence  was 
not  admissible.3  In  the  next  year  the  case  of  Carter  v.  Shotwell 4 
came  before  that,  court,  in  which  also  the  question  of  proving 
fraud  under  a  general  denial  was  involved.  While  Judge  Kom- 
bauer raises  the  question,  he  does  not  directly  decide  it,  though 
he  does  say  it  is  the  better  rule,  where  fraud  is  relied  on  as  a 
defense,  to  plead  it  specially.  In  the  case  of  Chapman  v.  Currie? 
which  was  decided  in  1892,  the  question  involved  was  that  of  the 
illegality  of  a  contract,  and  the  court,  speaking  through  Bio-o-Sj  J.? 
held  that  such  illegality  might  be  shown  under  a  general  denial, 
saying  that  "the  effect  of  the  answer  was  to  deny  that  there  was 
any  legal  contract  in  existence,"  and  he  cites  Sprague  v.  Rooney* 
In  a  case  arising  in  1893 7  the  St.  Louis  court  of  appeals  places 
itself  squarely  in  line  with  the  Greenway  case  and  the  cases  fol- 
lowing it,  and  cites  with  approval  two  decisions  of  the  Kansas 
City  court  of  appeals  which  are  also  in  line  with  those  cases,  and 
which  will  be  presently  referred  to.  In  the  Scudder  case,7  Bond,  J., 
says:  "  It  follows,  therefore,  according  to  the  definition  of  the 
issues  raised  by  the  general  denial,  that  it  was  competent  there- 
under in  this  case  to  adduce  evidence  of  the  real  character  of  the 
fraudulent  trusts  created  by  respondents,  and  assumed  by  appel- 
lant, in  the  issuance  of  the  stock  sued  for  in  appellant's  name." 
(p.  522.) 

§  580.  Turning  to  the  decisions  of  the  Kansas  City  court  of 
appeals,  its  first  decision  on  the  point  was  rendered  in  1885.8 
That  case  involved  the  question  of  fraud  upon  creditors,  and  the 
court  follows  the  cases  of  Greenway  v.  James9  and  Glascock  v. 
Young™  holding  that  it  was  perfectly  competent  to  introduce 
under  a  general  denial  the  defense  of  the  invalidity  of  the  contract 

1  Stern    Auction    Co.  v.  Mason,  16  4  42  Mo.  663. 
A  pp.  473.  551  App.  40. 

2  39  App.  419.  6  104  Mo.  349. 

3  It  will  be  noted  that  the  Mason  7  Scudder  v.  Atwood,  55  App.  512. 
case  was   one  in  replevin    and    the  8  Tyler  v.  Larimore,  19  App.  445. 
Claflin  case  was  an  interplea  in  an  at-  9  34  Mo.  326. 

tachment  case,  so  that  the  cases  were       1079  Ma  574. 
identical  in  principle.     See  §  580,  n.  3, 
on  next  page. 

Mo.  Code  Pl.—  20 


30G  the  amswei:.  [§  580. 

by  reason  of  this  fraud,    (p.  45S.)    That  case  was  decided  by  Phil- 
lips, P.  J.;  and  in  a  decision  rendered  by  him  shortly  afterwards 
he  held  that  it  might  be  shown  under  a  general  denial  that 
the  contract  upon  which  plaintiff  sought  to  recover  was  illegal 
as  contrary  to  public  policy.1    The  next  case  is  that  of  White  v. 
Middlesworth?     That  was  an  action  against  a  surety  on  a  prom- 
issory note,  who  set  up  in  defense  that  plaintiff  had  granted  the 
maker  of  the  note  an  extension  of  time,  for  a  good  consideration, 
without  defendant's  knowledge  or  consent.     Plaintiff  replied  by 
a  general  denial.     Defendant  proved  the  extension,  and  objected 
to  plaintiff  testifying  that  the  extension  was  made  on  the  prin- 
cipal's representations  that  the  defendant  surety  knew  of,  and 
had  agreed  to,  the  terms  of  the  extension.     It  was  held  that  the 
evidence  tended  to  show  that  the  agreement  for  the  extension 
was  void  ab  initio  on  account  of  the  fraud  and  deceit  of  the  prin- 
cipal in  procuring  it,  and  was  admissible  under  the  general  de- 
nial.    There  the  court  makes  the  distinction  that  it  is  only  where 
the  contract  is  merely  voidable,  and  not  void,  that  it  is  necessary 
to  plead  specially  the  circumstances  of  the  fraud.     The  language 
of  the  court  is  as  follows:  "  The  fraud,  if  established  by  the  evi- 
dence, tended  to  disprove  an  agreement  valid  in  law  for  the  ex- 
tension.    It  tended  to  show  the  agreement  was  void  ah  initio 
on  account  of  the  fraud  and  deceit  of  Beers  in  procuring  it.    The 
evidence  in  question  proved  that  the  agreement,  the  basis  ol 
the  defense,  never  existed.     In  other  words,  that  it  was  as  if  it 
had  never  been  —  nothing.   Under  the  general  denial,  evidence  of 
this  character  was  admissible."    (p.  373.)     And  on  rehearing  the 
court  says  further:  "We  do  not  doubt  that  a  denial  in  general 
terms  of  the  making  of  a  contract  puts  in  issue  every  fact  essen- 
tial to  the  original  creation  of  the  obligation.     Under  an  issue 
so  made,  evidence  tending  to  show  that  the  contract  never  had 
any  existence,  or  was  never  made,  was  proper."     (p.  375.)     In 
the  next  case  it  is  held  (the  opinion  being  by  Ellison,  J.)  that,  in 
the  trial  of  an  interplea  tiled  in  an  attachment  case,  the  attach- 
ment plaintiff  may,  under  a  general  denial,  show  that  the  inter- 
pleader's claim  is  fraudulent,  and  that  he  has  therefore  no  title.3 
It  is  to  be  noted,  however,  that  the  decision  in  this  case  is  placed 
upon  the  ground  that  an  interplea  in  an  attachment  case  is  of 
the  nature  of  a  replevin  suit;  and,  as  will  be  seen  hereafter,  a 

1  Suits  v.  Taylor,  20  App.  160.  3  First  National  Bank  v.  Kansas  City 

*  42  App.  368.  Lime  Co.,  43  App.  501. 


§  581.]        WHAT    MAT    BE    SHOWN    UNDER   GENERAL    DENIAL.  307 

general  denial  in  a  replevin  suit  raises  the  question  of  fraud  in 
the  plaintiff's  title.1  The  case  of  Harclwick  v.  Cox 2  involved  the 
question  of  fraud  as  to  creditors,  and  the  court,  speaking  through 
Smith,  P.  J.,  holds  that  the  evidence  was  admissible  under  a 
general  denial.  In  the  case  of  Simon  v.  Simcox 3  the  same  judge 
goes  so  far  as  to  hold  that,  where  the  answer  is  a  general  denial, 
but  also  sets  up  special  fraudulent  acts,  the  evidence  will  not  be 
confined  to  the  special  acts  pleaded,  but  that  under  the  general 
-denial  evidence  is  admissible  relating  to  other  frauds  connected 
with  the  transaction.  In  an  earlier  case 4  the  question  whether 
fraud  could  be  shown  under  a  general  denial  presented  a  some- 
what different  aspect.  Most  of  the  preceding  cases  involved 
fraud  as  against  creditors.  The  case  in  hand  involved  the  fraud- 
ulent alteration  of  the  instrument  sued  on.  But  the  Kansas  City 
court  applies  the  same  rule,  holding  that  a  fraudulent  alteration 
of  an  instrument  may  be  shown  under  a  general  denial  of  its  ex- 
ecution. That  court,  however,  refuses  to  extend  the  rule  so  as 
to  cover  the  defense  of  illegality.  For  in  George  v.  Williams? 
which  was  an  action  to  recover  for  professional  services,  defend- 
ant sought  to  prove  under  a  general  denial  that  the  services  were 
rendered  in  the  compounding  of  a  felony,  and  the  court  held 
that  such  a  defense  could  not  be  made  under  a  general  denial.6 
§  5S1.  The  result  of  this  examination  leads,  I  think,  to  the  con- 
clusion that  the  defense  of  fraud  may  be  made  under  a  general 
denial,  but  that,  where  the  cause  of  action  is  founded  upon  a  con- 
tract, it  cannot  be  shown  under  a  general  denial  that  the  contract 
was  illegal  or  contrary  to  public  policy.7  It  may  be  shown  in 
defense  to  an  action  on  a  writing  that  the  signature  of  defend- 
ant to  the  writing  was  procured  through  the  secret  and  fraudu- 
lent substitution  of  it  in  place  of  another  writing,  which  the 
defendant  supposed  he  was  signing.8 

1  §  582,  post.  See  also  §  579,  ante,  and  kindred  defenses,  is  the  one  laid 
where  the  Claflin  and  Mason  cases,  down  in  St.  Louis  Agr.  &  Mech.  Ass'n 
which  stand  upon  a  like  ground,  are  v.  Delano,  108  Mo.  217;  Kansas  City- 
discussed.  School  District  v.  Sheidley,  138  Mo. 

2  50  App.  509.  627,  and  McDearmott  v.  Sedgwick,  140 

3  75  App.  143.  Mo.  172. 

4  Law  v.  Crawford,  67  App.  150.  8  Kingman  v.  Shawley,  61  App.  54. 
»58  App.  138.                                          See  also  §  588,  post. 

6  This  is  in  harmony  with  the  su-  That  in  an  action  of  ejectment  it 
preme  court  decision  on  the  same  may  be  shown  that  a  deed  offered  in 
point.    See  §  577,  ante,  n.  3,  p.  303.  evidence  was  obtained  by  fraud,  see 

7  This  rule,  as  to  proving  illegality  post,  §  596. 


308  THE    ANSWER.  [§  582. 

§582,  Fraud  or  illegality —  Actions  in  replevin.— In  the 

action  for  the  claim  and  delivery  of  personal  property,  known  at 
common  law  as  an  action  of  replevin,  it  is  beyond  question  the 
rule  that  defendant  may,  under  a  general  denial,  assail  the  plaint- 
iff's title  for  fraud.  This  question  first  came  before  the  supreme 
court  at  a  date  anterior  to  the  adoption  of  the  practice  act.  The 
case  of  Gibson  v.  Mazier1  was  tried  under  a  statute  which  pro- 
vided that  in  such  cases  defendant  might  plead  "  not  guilty," 
and  that  such  plea  should  put  in  issue  not  only  the  right  of  the 
plaintiff  to  the  possession  of  the  property  but  also  the  wrongful 
taking  and  detention.  It  was  held,  Scott,  J.,  delivering  the  opin- 
ion, that  if  the  right  of  possession  is  put  in  issue  it  is  hard  to 
imagine  a  reason  why  evidence  tending  to  show  that  the  deed 
under  which  plaintiff  claims  is  fraudulent  as  against  creditors, 
and  therefore  void,  is  not  admissible  under  that  issue.  In  Bosse 
v.  Thomas 2  the  question  of  showing  fraud  did  not  arise,  but  the 
reasoning  of  the  court  necessarily  leads  to  the  conclusion  that 
defendant  would  be  permitted,  under  a  general  denial,  to  show 
that  plaintiff's  title  was  void  by  reason  of  fraud,  it  being  held 
that  under  such  a  plea  any  evidence  is  admissible  on  the  part 
of  defendant  which  goes  to  show  that  plaintiff  has  neither 
property  nor  right  of  possession,  and  that  evidence  of  title  in  a 
stranger  is  admissible.  In  Young  v.  Glascock 3  the  defense  proved 
was  that  the  title  of  plaintiff  was  only  colorable,  and  was  void 
as  to  the  creditors  of  the  pretended  vendor,  and  this  proof  was 
held  to  be  admissible  under  a  general  denial.  "  In  the  action  of 
replevin,"  says  Phillips,  C,  "  as  in  that  of  ejectment,  where  the 
pleading  on  the  part  of  plaintiff  is  a  general  averment  of  owner- 
ship of  the  property  and  a  consequent  right  of  possession,  any 
proof  on  the  part  of  defendant  which*  goes  to  show  that  the 
plaintiff  at  the  time  of  the  institution  of  the  suit  was  not  the 
actual  owner,  and  was  not  entitled  to  the  possession  thereof,  is 
admissible  under  the  general  issue,  even  though  it  extend  to  the 
proof  of  fraud  in  the  acquisition  of  plaintiff's  title,  or  that  the 
ownership  and  right  of  possession  were  in  a  third  party."  (p.  576.)* 
In  a  case  involving  facts  in  many  respects  quite  similar  to  those 
of  Young  v.  Glascock,3  the  St.  Louis  court  of  appeals  follows  that 
decision.5 

1 9  Mo.  256.  *  The  doctrine  is   again  stated  in 

2  3  App.  472.  Springer  v.  Kleinsorge,  83  Mo.  152. 

3  ?fJ  Ma  574  s  Stern  Auction   Co.  v.  Mason,  16 

App.  473. 


§§  583-6.]       WHAT    MAT   BE    SHOWN   UNDER   GENERAL   DENIAL.         309 

§  583.  In  Eirfson  v.  Eedger1  the  plaintiff  made  a  conditional 
sale  of  cattle  to  one  Alley,  under  an  oral  agreement  that  the  title 
should  remain  in  plaintiff  until  the  purchase-money  was  paid, 
which  agreement  was  void  under  the  Missouri  statute.  .  Alley 
sold  to  defendant  and,  when  the  cattle  were  replevied  by  plaint- 
iff, defendant  interposed  a  general  denial.  The  court  held  that 
under  this  plea  defendant  might  assail  plaintiff's  title  for  fraud, 
and  show  such  facts  as  would  under  the  law  render  such  title 
void  and  ineffective  as  against  the  defendant.2  This  is  the  set- 
tled law  in  this  state,  and  the  principle  upon  which  it  rests  is 
announced  in  Oester  v.  Siilington?  Westbay  v.  Milligan*  and  Ad- 
vance Thresher  Go.  v.  Pierce.5  In  the  supreme  court  case  just 
cited,3  Judge  Macfarlane  says  that  in  an  action  of  replevin  a 
general  denial  puts  in  issue  the  plaintiff's  right  to  the  possession 
of  the  property  at  the  commencement  of  the  action,  and  every 
collateral  fact  necessary  to  the  establishment  of  the  same. 
(p.257.)6 

§  584.  Agency. —  Where  an  action  is  brought  for  the  purchase 
price  of  personalty  sold  by  a  person,  who  in  point  of  fact  acted  as 
the  agent  of  plaintiff,  and  the  defense  is  that  the  agency  was  not 
disclosed,  and  that  defendant  had  in  good  faith  treated  the  agent 
as  a  principal  and  paid  the  money  to  him,  such  defense  should 
be  specially  pleaded;  it  cannot  be  shown  under  a  general  denial.7 
If  in  an  action  by  a  real-estate  agent  to  recover  his  commissions 
the  defense  is  that  the  plaintiff,  without  defendant's  knowledge 
and  consent,  acted  as  agent  for  both  parties  in  the  transaction, 
this  defense  must  be  affirmatively  pleaded.8 

§  585.  Alteration. —  Proof  that  after  the  signing  of  a  promis- 
sory note,  but  before  its  delivery  or  the  attaching  of  any  liability, 
it  was  materially  altered  without  the  consent  of  the  signer,  is  ad- 
missible under  a  general  denial.9 

§  586.  Assignment. —  If  an  action  is  brought  upon  an  account 
which  has  been  assigned  by  the  plaintiff,  a  general  denial  will 
impose  upon  the  plaintiff  the  burden  of  proving  both  the  account 

1 38  App.  52.  the  defense  of  innocent  purchaser  for 

2  The  same  view  is  taken  in  Christy  value  cannot  be  shown  under  a  gen- 

v.  Scott,  31  App.  331.  eral  denial.    See  §  614,  post. 

3 115  Mo.  247.  '  Hutchinson  Mfg.  Co.  v.  Henry,  44 

4  74  App.  179.  App.  263. 

5  74  App.  676.  8  Reese  v.  Garth,  36  App.  641. 

*  In  ejectment  plaintiff's  title  may        9  National  Bank  v.  Nickell,  34  App. 
be  shown  to  be  fraudulent  under  a    295.     See  §  590,  post. 
general  denial.     See  §  596,  p>osL    But 


310  THE  ANSWER.  [§§587-580. 

and  its  assignment;  but  where  defendant  sets  up  the  special  de- 
fense that  he  did  not  purchase  the  articles  of  plaintiff,  but  of  an- 
other party  to  whom  he  had  paid  the  bill,  this  admits  both  the 
correctness  of  die  account  and  the  fact  of  the  assignment.1 

-?.  In  actions  on  bills  and  notes. —  In  an  action  to  recover 
the  reasonable  value  of  merchandise  sold  to  defendant,  the  latter 
may  prove  under  a  general  denial  that  he  had  given  to  a  third 
party  a  draft  on  plaintiff,  and  that  plaintiff  had  promised  when 
the  draft  was  presented  to  pay  it,  that  he  had  requested  time  and 
had  ultimately  failed  to  pay  the  draft,  and  that  at  the  same  time 
the  plaintiff  had  stated  that  he  was  indebted  to  defendant  five 
or  six  hundred  dollars,  and  that  their  business  was  unsettled.2 
Where  the  defendant  is  sued  as  an  individual  on  a  promissory 
note  which  he  signed  as  president  of  a  corporation,  he  may  under 
a  general  denial  prove  that  the  note  was  executed  by  him  solely 
for  the  benefit  of  the  corporation  and  for  its  debt.3 

§  58S.  In  actions  on  bonds. —  A  plea  of  non  est  factum  puts 
in  issue  only  the  execution  of  the  bond.4  Defendant  cannot 
show  under  that  plea  that  the  bond  sued  on  was  a  stake  to  be 
put  up  by  him  against  a  similar  bond  by  the  plaintiff  as  a  wager 
upon  the  result  of  an  election.  Such  a  defense  must  be  specially 
pleaded.5 

§  589.  In  actions  against  carriers. —  Wherein  an  action  by  a 
passenger  for  being  ejected  from  a  railroad  train  the  petition 
alleges  that  plaintiff  entered  the  train  by  virtue  of  a  round-trip 
ticket  from  one  station  to  another  and  return,  defendant  may 
show  under  a  general  denial  that  by  the  rules  and  regulations 
of  the  company  plaintiff  had  no  right  to  enter  that  particular 
train  under  such  a  ticket,  and  that  he  was  so  informed  by  de- 
fendant's agent  when  the  ticket  was  purchased ;  it  is  not  neces- 
sary that  defendant  should  set  forth  in  its  answer  the  rules  and 
regulations  of  the  company  governing  such  matters.6  Where 
the  action  is  for  non-delivery  of  goods  intrusted  to  the  carrier 
for  transportation,  defendant  cannot  show  under  a  general  de- 
nial that  its  liability  as  a  carrier  had  terminated,  and  that  the 
goods  were  destroyed  by  fire  while  defendant  was  holding  them 

iBond  v.  Long,  87  Mo.  266.  the  rule  in  actions  on  official  bonds, 

2  Hayden  v.  Herndon,  9  Mo.  864.  see  §  610,  post. 

s  Turner  v.  Thomas,  10  App.  338.  «  Logan  v.  Hannibal  &  St.  J.  R  Co., 

4  State  to  use  v.  Ferguson,  9  Mo.  285.     77  Mo.   663.     This  decision  virtually 
5Stapleton  v.  Benson,  8  Mo.  13.   For    overrules  Hicks  v.  Hannibal  &  St.  J. 

R.  Co.,  68  Mo.  329. 


§§  590-1.]       WHAT   MAY    BE    SHOWN    UNDER    GENERAL    DENIAL.        311 

as  warehouseman.1  If  a  connecting  carrier  desires  to  avail  it- 
self of  the  benefits  of  limitations  contained  in  the  contract  with 
the  receiving  carrier,  it  must  specially  plead  such  limitations.2 
"Where  the  action  was  for  an  injury  to  cattle  by  a  stampede,  and 
a  bill  of  lading,  which  was  made  and  delivered  after  the  stam- 
pede, contained  a  release  of  all  causes  of  action,  such  release  is 
not  admissible  under  a  general  denial,  since  it  could  only  sup- 
port a  confession. and  avoidance.3 

§  590.  In  actions  on  contracts. —  "Want  of  consideration  may 
be  shown  under  a  general  denial.4  A  denial  in  general  terms  of 
the  making  of  a  contract  puts  in  issue  every  fact  essential  to  the 
original  creation  of  the  obligation.5  If  an  instrument  is  void  ah 
initio,  and  not  merely  voidable,  the  plea  of  non  est  factum  is  proper, 
and  facts  showing  the  instrument  to  be  void  may  be  given  in 
evidence  to  sustain  such  plea.6  The  defendant  is  always  at  lib- 
erty to  disprove  and  overthrow  a  contract  asserted  against  him 
by  proving  that  it  was  materially  different  from  the  one  so  as- 
serted.7 It  is  competent  under  the  general  denial  to  show  that 
the  contract  was  conditional,  and  that  the  condition  has  not 
been  fulfilled.8 

§  591.  In  an  action  on  an  insurance  policy,  if  there  is  an  allega- 
tion in  the  petition  that  plaintiff  has  complied  on  his  part  with 
all  the  conditions  of  the  policy,  a  general  denial  will  not  raise 
matters  of  defense  depending  on  the  terms  of  the  contract.9  If 
the  action  is  for  breach  of  a  verbal  agreement,  defendant  cannot 
under  the  general  denial  introduce  a  subsequent  written  agree- 
ment to  defeat  the  action.10  And  in  an  action  on  a  written  con- 
tract, evidence  will  not  be  received  to  vary  the  terms  of  the 
contract;  to  render  such  evidence  admissible  the  answer  must 
plead  the  subsequent  modification  of  the  written  contract,  espe- 
cially if  it  goes  to  defeat  plaintiff's  cause  of  action.11  If  defendant 

1  Pindell  v.  St.  Louis  &  Han.  R.  Co.,  the  defenses  of  fraud  and  illegality  is 

34  App.  075.  discussed  in  §^  577-583,  ante. 

2Halliday  v.  St,  Louis,  Kansas  City       *>La\v  v.  Crawford,  67  App.  150. 
&  N.  R  Co.,  74  Mo.  159.  ''  Wilkerson  v.  Farnham,  82  Mo.  672; 

3  Cooke  v.  Kansas  City.  Ft.  S.  &  M.  Clemens  v.  Knox,  31  App.  185.     See 

R  Co.,  57  App.  472.     Consult  also  §  609,  §  585.  ante. 

8  Stewart  v.  Goodrich,  9  App.  125. 

*  Block  v.  Elliott,  1  Mo.  275.  9  Hester  v.  Fidelity  &  Casualty  Co., 

sCavender  v.  Waddingham,  2  App.  C9  App.  186. 
551;  White  v.  Middlesworth,  42  App.       i"  Harrison  v.  Mo.  Pac.  R  Co.,  74  Mo. 

368;  Nortlirup  v.  Ins.  Co.,  47  Mo.  435.  364:  Hoskins  v.  Mo.  Pac.  R  Co.,  19  App. 

The  question  whether  this  includes  315. 

ii  Phister  v.  Gove,  48  App.  445. 


312  THE    ANSWKIi.  [§  592. 

relies  on  an  estoppel  or  a  subsequent  modification  of  the  contract 
sued  on,  he  must  plead  it,  since  neither  defense  can  be  shown 
under  a  general  denial.1  Nor  can  defendant  under  a  general 
denial  avail  himself  of  the  defense  that  the  contract  has  been 
rescinded.8  And  this  rule  applies  to  an  action  by  a  vendor 
against  the  vendee  to  recover  the  purchase-money.3  If  a  special 
custom  is  relied  upon  to  take  the  case  out  of  the  general  rules  of 
law,  it  cannot  be  shown  under  a  general  denial.4 

>2.  Showing  that  the  contract  is  void  under  the  statute 
of  frauds. —  It  was  held  before  the  adoption  of  the  Code  that 
it  was  not  necessary  to  plead  the  statute  of  frauds  as  a  defense, 
where  plaintiff's  pleading  did  not  show  whether  or  not  the  con- 
tract was  in  writing,  but  that  it  could  be  shown  under  the  gen- 
eral issue  that  the  contract  was  within  the  statute  and  that  it 
was  not  in  writing.5  And  the  rule  has  been  followed  since  the 
adoption  of  the  Code.6  The  two  cases  cited  were  suits  for  specific 
performance.  But  Springer  v.  Kleimorge 7  was  an  action  at  law  to 
recover  the  amount  of  a  bid  at  an  auction  sale  of  land,  and 
there,  too,  it  was  held  that  the  question  whether  the  contract 
was  in  writing,  as  required  by  the  statute  of  frauds,  might  be 
raised  under  a  general  denial.  Allen  v.  Richard*  was  also 
an  action  at  law,  and  there  was  the  same  ruling  on  this  ques- 
tion. It  is  now  recognized  as  the  settled  rule  in  this  state 
that  in  all  proceedings,  whether  actions  at  law  or  suits  in  equity, 
unless  the  contract  is  admitted,  a  general  denial  is  sufficient  to 
raise  the  issue  that  the  contract  is  void  because  within  the  stat- 
ute of  frauds  and  not  in  writing.9  The  rule  applies  to  the  case  of 
a  sale;  but,  of  course,  if  in  such  a  case  the  delivery  of  the  goods 
is  admitted,  the  statute  of  frauds  has  nothing  to  do  with  the 
case.10  It  is  said  in  Ilurt  v.  Fordn  that  wThere  plaintiff  in  her 
replication  denies  all  the  allegations  of  the  answer,  except  as  to 
the  facts  alleged  in  the  petition,  the  effect  of  such  reply  was  to 

1  Tyler  v.  Tyler,  78  App.  240.  »Boyd  v.  Paul,  125  Mo.  9;  Miller  v. 

2Riggins  v.  Missouri  River,  F.  S.  &  Harper,  63  App.  293;  Hackett  v.  Watts, 

G.  R.  Co..  73  Mo.  598;  Brown  v.  Wei-  138  Mo.  502;  Porter  v.  Citizens1  Bank, 

don,  27  App.  251.  73  App.  513;  State  ex  reL  v.  Cape  Gi- 

3  Reynolds  v.  Reynolds,  45  App.  G22.  rardeau  Waterworks  Co.,  74  App.  273; 

*  Hayden  v.  Grillo,  42  App.  1.  Hillman  v.  Allen,  145  Mo.  638.    The 

The  rule  in  an  action  on  a  lease  will  few  cases  in  which  the  contrary  has 

be  found  in  §  603,  x>ost.  been  held,  of  which  Gordon  v.  Mad- 

5  Wildbahn  v.  Robidoux,  11  Mo.  659.  den,  82  Mo.  193,  is  an  instance,  do  not 

''  I  look  v.  Turner,  22  Mo.  333.  correctly  state  the  law. 

7  83  Mo.  112.  10  Graff  v.  Foster,  67  Mo.  512. 

8  83  Mo.  55.  ii  142  Mo.  283. 


§§  593-6.]       WHAT   MAT   BE   SHOWN    UNDER   GENERAL   DENIAL.       313 

deny  that  plaintiff  ever  promised  defendants  that,  if  they  would 
become  sureties  on  a  note  of  her  brother-in-law,  she  would  pay 
the  note  at  its  maturity,  and  otherwise  hold  them  harmless. 
And  as  that  alleged  contract  was  merely  oral,  and  therefore 
within  the  statute  of  frauds,  the  plea  of  the  statute  as  a  bar  to 
this  defense  was  as  well  raised  b}T  the  denial  as  it  would  have 
been  by  a  special  plea.  The  rule  above  announced  obtains  where 
the  petition  prays  for  specific  performance,  or,  if  that  be  not  de- 
creed, then  for  damages  for  a  failure  to  perform  the  contract,1 

§  593.  Showing  custom. —  If  a  special  custom  is  relied  upon 
to  take  the  case  out  of  the  general  rules  of  law,  it  cannot  be 
shown  under  a  general  denial.2 

§  594.  Proving  damages, —  The  question  what  damages  may 
be  proved  under  a  general  denial  is  considered  in  section  613, 
post. 

§  595.  In  actions  of  ejectment, —  Where  in  an  action  of  eject- 
ment defendant's  plea  is  a  general  denial,  he  may  show  title  in 
himself  by  proving  that  he  purchased  the  property  at  sheriff's 
sale  under  a  judgment  and  execution  against  the  plaintiff.3  He 
may  offer  in  evidence  the  proceedings  of  the  probate  court  which 
show  title  in  himself.4  He  may  show  that  he  is  holding  posses- 
sion under  an  agreement  fixing  a  permanent  boundary  line.5  If 
plaintiff  claims  under  the  purchase  by  a  husband  of  a  title  adverse 
to  his  wife,  defendant  may  show  that  such  purchase  inured  to 
her  benefit.6  In  an  action  by  one  tenant  in  common  against  an- 
other, the  ouster  is  admitted  by  a  general  denial;  but  the  admis- 
sion does  not  extend  to  the  date  of  the  ouster  as  it  is  alleged  in 
the  petition.7  Where  the  answer  is  a  general  denial,  plaintiff  may 
rely  on  any  title  which  the  evidence  in  the  case  may  disclose.8 

§  596.  Same  —  Attacking  deed  for  fraud. —  In  the  action  of 
ejectment,  where  either  party  offers  in  evidence  a  deed  in  the 
chain  of  evidence,  the  adversary  may  attack  it  for  fraud,  though 
a  court  of  equity  would  have  jurisdiction  to  set  it  aside;  and  it 
necessarily  follows  that  under  a  general  denial  the  defendant 
may  attack  for  fraud  or  on  any  other  ground  any  deed  in  the 
chain  of  plaintiff's  title.9 

1  Devore  v.  Devore,  138  Mo.  181.  6  Hickman  v.  Link,  97  Ma  482. 

2Hayden  v.  Grillo,  42  App.  1.  7La  Riviere  v.  La  Riviere,  77  Mo. 

3  Davis  v.  Peveler,  65  Mo.  189.  512. 

4  Macey  v.  Stark,  116  Mo.  481.  8  Porter  v.  Gaines,  151  Mo.  560. 

5  Jacobs    v.    Moseley,   91    Mo.   462;        9  Christy  v.  Scott,  31  App.  331. 
Schad  v.  Sharp,  95  Mo.  574;  Atchison 

v.  Pease,  96  Mo.  56G. 


314  THE  ANSWER.  [§§597-000. 

§  507.  Same  —  Showing  that  deed  is  an  escrow. —  It  is  a 
familiar  principle  that  a  deed  delivered  as  an  escrow  has  no  force 
until  the  condition  is  performed,  and  that  even  if  the  grantee 
should  get  such  a  deed  into  his  possession,  while  still  subject  to 
the  condition,  he  could  derive  no  benefit  from  it.  Hence,  defend- 
ant may,  under  a  general  denial,  show  that  the  deed  under  which 
plaintiff  claims  was  originally  delivered  as  an  escrow,  and  that 
the  condition  had  never  been  performed.1 

§598.  Same  —  Action  by  pretermitted  heirs. —  Where  an 
action  in  ejectment  is  brought  by  pretermitted  heirs,  the  defense 
that  plaintiffs  have  received  advancements  and  that  defendant 
has  made  improvements  must  be  pleaded;  these  facts  cannot  be 
shown  under  a  general  denial.2 

§  599.  Same  —  Where  title  comes  through  deed  of  trust.— 
"Where  the  title  comes  through  a  sale  under  a  deed  of  trust,  and 
such  sale  is  not  made  at  the  place  described  in  the  deed  of  trust, 
it  will  still  pass  the  legal  title,  and  a  deed  under  such  sale  will 
be  a  good  defense  as  an  outstanding  title,  and  may  be  interposed 
under  a  general  denial  in  an  ejectment  brought  by  a  purchaser 
at  a  subsequent  foreclosure  sale  under  the  same  deed  of  trust, 
even  against  the  grantor  in  the  deed  of  trust.  And  where  the 
plaintiff  relies  upon  a  purchase  at  a  sale  under  a  deed  of  trust, 
the  defendant  cannot  under  the  general  denial  show  that  the 
sale  was  not  made  at  the  place  designated  in  the  deed  of  trust.3 
"Where  the  action  is  brought  by  a  purchaser  under  a  deed  of  trust 
against  the  grantor  in  the  deed  of  trust,  and  the  answer  is  a  gen- 
eral denial  without  any  offer  to  redeem,  defendant  cannot  show 
that  the  sale  was  made  at  the  request  of  the  purchaser  and  that 
he  was  not  the  legal  holder  of  the  note.  Defendant  might  have 
offered  to  redeem,  and  upon  performance  his  possession  would 
have  been  protected  and  he  would  have  been  reinvested  with  the 
title;  but  failing  to  make  such  offer,  the  only  issue  was  the  legal 
title,  and  this  passed  by  the  sheriff's  deed.4 

DO.  Same  —  Outstanding  equities. —  Under  a  general  de- 
nial in  an  action  of  ejectment  the  court  will  not  consider  any 
outstanding  equities.5  But  if  plaintiff  was  a  purchaser  at  a  sher- 
iff's sale,  and  the  answer  sets  out  a  prior  decree  in  partition  and 
a  deed  to  defendant  made  pursuant  thereto,  and  prays  for  a  find- 

1  Goff  v.  Roberts,  72  Mo.  570.  22.     This  case  overrules  many  earlier 

-  McCracken  v.  McCracken,  67  Mo.  decisions  of  the  supreme  court. 

590.  4  Biffle  v.  Pullam,  125  Mo.  108. 

3  Schanewerk  v.  Hoberecht,  117  Mo.  5  Hall  v.  Gregg,  138  Mo.  28G. 


§§  601-4.]       WHAT   MAT   BE    SHOWN   UNDEK   GENERAL   DENIAL.       315 

ing  for  the  latter  and  a  decree  declaring  him  to  be  the  owner  of 
the  property,  and  for  such  other  orders,  judgments  and  decrees 
as  shall  be  right  and  proper,  it  states  only  such  facts  as  might 
be  given  in  evidence  under  a  general  denial.1  So  where  the  an- 
swer admitted  possession  of  the  premises,  but  denied  the  other 
allegations  of  the  petition,  and  then  gave  a  history  of  the  deeds 
by  which  plaintiff  claimed  to  have  obtained  his  title,  followed 
by  averments  that  defendant  had  paid  off  and  discharged  cer- 
tain incumbrances,  that  the  deed  to  plaintiff  was  without  con- 
sideration, made  for  the  purpose  of  defrauding  defendant,  and 
was  a  cloud  upon  his  title,  and  the  prayer  was  that  the  deed  to 
plaintiff  be  declared  void,  that  the  title  of  the  property  be  vested 
in  defendant,  and  that  plaintiff  and  those  claiming  under  him  be 
forever  enjoined  from  asserting  title,  and  for  general  relief,  it 
was  held  that  there  was  no  fact  pertinent  to  the  issues  which 
could  not  be  given  in  evidence  under  the  general  issue.2 

§  601.  In  an  action  for  homicide. —  In  an  action  by  a  widow 
for  the  killing  of  her  husband  under  circumstances  which 
amounted  to  homicide,  defendant  may,  under  a  general  denial, 
give  evidence  tending  to  show  that  he  acted  in  self-defense.3 

§  602.  The  issue  of  infancy. —  "Where  the  petition  is  brought 
by  an  infant  by  his  guardian  or  next  friend,  the  allegations  that 
the  plaintiff  is  an  infant,  and  that  the  one  purporting  to  be  his 
guardian  or  next  friend  has  been  duly  appointed  as  such,  are  is- 
suable facts,  but  the  issue  cannot  be  raised  by  a  general  denial.4 

§  603.  In  actions  between  landlord  and  tenant. —  Where  a 
landlord  brings  an  action  for  a  breach  of  the  covenants  of  a  lease, 
charging  that  the  tenant  has  failed  to  pay  rent  according  to  a 
modification  of  the  lease,  and  the  answer  is  a  general  denial,  this 
casts  upon  plaintiff  the  burden  of  establishing  the  lease,  the  modi- 
fication and  the  breach,  and  that  he  had  performed  all  the  con- 
ditions of  the  lease  to  be  performed  by  him,  and  defendant  would 
be  permitted  to  show  that  he  had  paid  the  rent;  but  if  he  relies 
upon  any  new  matter  going  to  avoid  the  action,  he  must  spe- 
cially plead  it.5 

§  604.  Showing  a  bar  by  limitation. —  Both  at  common  law 
and  under  the  Code  the  defense  of  the  statute  of  limitations  must 
be  raised  by  answer,  except  where  the  statute  confers  title,  in 

'  Hart  v.  Steedman,  98  Mo.  452.  « Randolph  v.  Hannibal  &  St.  J.  R. 

2  Thummel  v.  Holden,  149  Mo.  077.     Co.,  18  App.  609. 

3  Nichols  v.  Winfrey,  79  Mo.  540.  5Evers  v.  Shumaker,  57  App.  454. 


316  THE  ANSWER.  [§§  G05-G07. 

which  oase  it  becomes  available  under  a  general  denial.1  And 
the  action  of  ejeotmentcom.es  within  the  exception  above  stated.2 
The  reason  of  this  exception  is  that  the  statute  operates  directly 
upon  the  right  to  the  land  and  vests  title  in  the  adverse  pos- 
sessor; hence  a  denial  of  the  title  opens  up  the  question  of  the 
acquirement  of  title  by  defendant  by  reason  of  the  adverse  pos- 
session.3 It  will  be  seen  from  an  examination  of  the  above  cases 
that  the  rule  operates  also  in  favor  of  the  plaintiff,  and  that  he 
may  show  under  a  general  allegation  of  right  to  possession  that 
he  has  acquired  the  title  by  limitation.  In  such  actions  it  is 
neither  necessary  to  plead  the  general  statute,  nor  the  special 
statute  which  formerly  applied  to  tax  deeds.4  In  like  manner 
the  special  thirty-year  statute 5  may  be  availed  of  as  a  defense 
without  being  specially  pleaded.6 

§  605.  Avoiding  plea  of  the  statute  of  limitations. —  When 
the  answer  sets  up  the  statute  of  limitations  and  plaintiff  relies 
on  matter  in  avoidance  of  the  plea,  he  must  plead  it  specially : 
such  facts  cannot  be  shown  under  a  general  denial.7  And  where< 
an  acknowledgment  in  writing  is  relied  upon  to  save  the  debt 
from  the  bar  of  the  statute,  such  acknowledgment  must  be 
pleaded.8 

§  606.  In  actions  for  malicious  prosecution. —  In  an  action 
for  malicious  prosecution  the  defendant  may  under  a  general 
denial  show  that  he  acted  in  good  faith  upon  the  advice  of  coun- 
sel.9 It  has  been  held  in  actions  for  trespass  that,  while  the  bur- 
den of  proving  probable  cause  rests  upon  the  defendant,  yet  he 
need  not  set  up  in  his  answer  that  he  had  probable  cause.10  And 
I  apprehend  that  the  same  rule  would  be  held  to  apply  to  ac- 
tions for  malicious  prosecution. 

§  607.  In  actions  between  employer  and  employee, —  The 
defense  that  personal  injuries  for  which  the  action  is  brought 

iBenoist  v.  Darby,  12  Mo.  196;  Bell  53  Mo.  305;  Hill  v.  Bailey,  76  Mo.  454; 

v.  Clark,  SO  App.  224;  Orr  v.  Rode,  101  Coleman  v.  Drane,  116  Mo.  387. 

Mo.  387;  Stoddard  County  v.  Malone,  4Bird  v.  Sellers,  113  Mo.  580. 

115  Mo.  508;  Maddox  v.  Duncan,  62  &Rev.  Stat.  1899,  sec.  4268. 

App.  474.  6  Fairbanks  v.  Long,  91  Mo.  628. 

2  Campbell  v.  Laclede  Gas  Light  Co.,  7  Moore  v.  Granby  Mining  Co.,  80 
81  Ma  352.  Mo.  86. 

3  Nelson  v.  Brodhack,  44  Mo.  596;  8  Zoll  v.  Carnahan,  83  Mo.  35. 
Fulkerson   v.    Mitchell,    82    Mo.    13;  9 Sparling  v.  Conway,  75  Mo.  510. 
Holmes  v.  Kring,  93  Mo.  452;  Stocker  i<>Walther  v.   Warner,  26  Mo.   143; 
v.  Green,  94  Mo.  280;  Bledsoe  v.  Sims,  Brown  v.  Carter,  52  Mo.  46. 


§§  60S-9.]        WHAT   MAY    BE    SHOWN   UNDER    GENERAL    DENIAL.       817 

were  caused  by  the  negligence  of  a  fellow-servant  of  the  plaintiff 
is  available  without  being  specially  pleaded.1 

§  608.  In  mechanics'  lien  suits.— In  an  action  to  enforce  a 
mechanic's  lien,  where  the  petition  alleges  among  other  things 
that  the  material  was  used  in  the  construction  of  the  building, 
a  general  denial  of  any  knowledge  or  information  sufficient  to 
form  a  belief  as  to  the  truth  of  the  facts  stated  in  the  petition 
puts  in  issue  this  allegation.2  All  the  facts  necessary  to  consti- 
tute the  lien  must  be  specifically  denied  or  they  stand  admitted; 
and  if  the  answer  contains  simply  a  denial  that  the  claim  consti- 
tutes a  lien  on  the  land,  this  puts  in  issue  only  the  liability 
of  the  land  to  the  charge.3  If  defendant  relies  upon  a  special 
contract  between  him  and  plaintiff,  he  must  set  up  such  contract 
and  the  breach  of  it  as  a  special  defense;  such  defense  cannot 
be  shown  under  a  general  denial.4 

§  609.  In  actions  for  negligence.5  —  In  an  action  based  upon 
negligence  by  which  property  or  the  person  is  injured,  the  fact 
that  the  injury  results  from  the  negligence  of  the  defendant  is 
put  in  issue  by  the  general  denial;  but  contributory  negligence 
must  be  specially  pleaded.6  In  an  action  against  a  railroad  com- 
pany for  the  death  of  a  passenger,  the  negligence  alleged  was  the 
want  of  care  on  the  part  of  the  company's  employees,  and  de- 
fects in  its  road.  The  defendant  denied  all  the  allegations  of 
the  petition,  and  also  filed  a  special  plea  alleging  that  the  road 
was  well  constructed,  the  employees  skilful  and  careful,  but  that 
the  casualty  was  caused  by  an  extraordinary  storm.  It  was  held 
that  all  this  matter  could  be  shown  under  the  general  denial,  and 
therefore  the  special  plea  was  properly  stricken  out.7  In  an  ac- 
tion for  the  death  of  an  employee  the  petition  charged  that  the 
deceased  was  employed  by  defendant,  and  that  he  was  killed  by 
the  breaking  of  a  scaffold  constructed  out  of  defective  lumber 
which  defendant  furnished.  The  answer  averred  contributory 
negligence  on  the  part  of  the  deceased,  in  that  he  constructed 
the  scaffold  out  of  lumber  selected  by  himself  from  the  lumber 

1Sheehan  v.  Prosser,  55  App.   568.  5This  subject  is  also  incidentally 

See  also  §  600,  n.  1,  p.  318.  discussed  in  §  553  et  seq.,  ante.    See 

For  liability  of  emj  loyer  for  acts  of  also  £§  589  and  607,  ante,  and  §  613, 

employee,  see  £  616,  post.  post. 

2  Schulenberg  v.  Prairie  Home  In-  6  Donovan  v.  Hannibal  &  St.  J.  R. 
stitute,  65  Mo.  205.  But  see  case  cited  Co.,  89  Mo.  147;  Young  v.  Kansas  City, 
in  next  note.  27  App.  101. 

3  Fitzpatrick  v.  Thomas,  61  Mo.  515.        '  Ellet  v.  St.  Louis,  K  C.  &  N.  R.  Co., 
*  Meyer  v.  Broadwell,  83  Mo.  571.  76  Mo.  518. 


318  THE    ANSWER.  [§§610,611. 

furnished  by  defendant.  A  reply  to  this  answer  by  way  of  gen- 
eral denial  puts  in  issue  not  only  the  fact  of  such  selection,  but 
also  whether  such  selection  was  a  duty  within  the  scope  of  the 
employment  of  the  deceased,  and  his  competency  to  perform  it.1 
Jt  may  be  shown  that  a  third  party  caused  the  injuries  sued  for.2 

£  (>10.  Action  against  officer. —  Where  an  action  of  trespass 
is  brought  against  a  constable,  and  he  desires  to  defend  on  the 
ground  that  the  goods  were  seized  by  him  under  execution,  and 
that  an  indemnity  bond  had  been  given  by  the  plaintiff  in  such 
execution,  these  facts  should  be  affirmatively  pleaded,  since  they 
cannot  be  submitted  to  the  jury  by  instructions  under  a  general 
denial.3  In  an  action  brought  on  a  constable's  bond  for  fees 
which  it  wras  alleged  the  defendant  collected  as  constable,  and 
refused  to  pay  over  to  plaintiff,  the  justice  of  the  peace,  the  evi- 
dence showed  the  collection  of  the  fees,  and  plaintiff  denied  that 
they  had  been  paid  over.  Under  the  general  denial  defendant 
offered  to  show  full  payment,  but  was  not  permitted  to  do  so. 
This  was  held  by  the  supreme  court  to  be  error,  since,  in  order 
that  plaintiff  should  recover,  it  was  necessary  for  him  to  prove 
not  only  the  collection  of  the  fees  by  the  constable,  but  that  de- 
mand of  payment  had  been  made  on  him  and  that  such  demand 
was  refused,  and  each  of  these  issues  was  met  by  the  general 
denial.4 

§  611.  Payment  or  tender. —  It  is  the  well  settled  law  of  this 
state  that  payment  is  an  affirmative  defense,  and  hence  that  it 
cannot  be  proved  under  a  general  denial.5  There  may  be  cases 
in  which  the  fact  of  non-payment  is  a  fact  to  be  proved  in  order 
to  sustain  the  plaintiff's  prima  facie  cause  of  action.  But  as  a 
general  thing,  in  ordinary  money  demands,  the  fact  of  payment 
is  in  the  nature  of  new  matter,  and  inadmissible  by  our  code 
under  a  simple  denial.6  And  the  court  adds  that  both  the  logic 
of  principle  and  the  weight  of  authority  lead  to  this  result.  One 
exception  is  where  the  fact  of  non-payment  is  stated  in  the  peti- 
tion as  a  necessary  and  material  averment  constituting  the  cause 
of  action,  in  which  case  a  general  denial  will  be  sufficient  to 
permit  the  defendant  to  show  payment.7 

iBoettger  v.  Scherpe  Iron  Co.,  127  s  Henderson  v.  Davis,  74  App.  1. 

Mo.  87.    See  also  §  607,  ante.  6  Wilkerson  v.  Farnham,  82  Mo.  672. 

2  Young  v.  Kansas  City,  27  App.  101.  estate  ex  rel.  v.  Peterson,  142  Mo. 

3  Palmer  v.  Shenkel,  50  App.  571.  See  526.     The  facts  of  this  case  are  given 

§621,  post.  in  §  610,  ante. 

4  State  ex  rel.  v.  Peterson,  142  Mo. 
526. 


£§  612-14.]       WHAT   MAT  BE    SHOWN   TJNDEK    GENERAL   DENIAL.       319 

§  612.  Defendant  made  his  negotiable  promissory  note  to  W, 
who  indorsed  it  to  B,  who  brought  an  action  on  it  and  then  trans- 
ferred it  to  plaintiff,  who  was  then  substituted  as  plaintiff  in  the 
place  of  B.  The  answer  was  a  general  denial,  and  in  addition  a 
cross-petition  in  which  it  was  alleged  that  B  was  indebted  to  the 
defendant  in  the  amount  of  $300  for  rent  of  a  cheese  factory. 
Under  this  answer,  evidence  going  to  show  various  cash  pay- 
ments was  held  to  be  inadmissible;  and  evidence  to  show  an 
agreement  that  the  rent  of  the  cheese  factory  was  to  be  applied 
on  the  note  was  likewise  inadmissible.1  Where  the  drawer  of  a 
check  brings  an  action  against  a  bank  for  conversion  of  the  sum 
for  which  it  is  drawn,  the  bank  may  show  that  the  check  was 
properly  paid  to  the  holder  of  it,  though  it  does  not  specially 
plead  such  payment  in  its  answer.2  When  in  an  action  on  a 
promissory  note  the  defendant  sets  up  a  tender  as  a  defense,  if 
plaintiff  relies  on  a  subsequent  demand  and  refusal,  he  must  set 
it  up  in  his  reply,  as  he  cannot  prove  it  under  a  general  denial.3 

§  613.  In  actions  for  personal  injuries. —  Where  the  action  is 
for  damages  on  account  of  personal  injuries,  defendant  may  show 
under  a  general  denial  that  the  injuries  were  caused  by  a  third 
person.4  All  evidence  in  mitigation  of  the  damages  is  admissible 
under  a  general  denial.5  And  defendant  may  show  any  acts  of 
the  plaintiff  tending  to  enhance  his  injuries,  whether  such  acts 
are  to  be  considered  in  mitigation  of,  or  as  limiting,  the  damages. 
Thus  it  may  be  shown  that  the  damages  were  increased  by  plaint- 
iff's continued  use  of  intoxicating  liquors.6 

§  614.  Purchaser  for  value. —  In  a  proceeding  in  equity  to 
set  aside  a  sale  made  under  a  deed  of  trust,  if  the  defendant  de- 
sires to  raise  the  issue  that  he  was  a  purchaser  for  value  and  in 
good  faith,  he  must  plead  it  as  an  affirmative  defense,  and  cannot 
raise  it  under  a  general  denial.7  Where  a  wife  brings  an  action 
to  recover  money  which  her  husband  has  stolen  from  her  and 
delivered  to  defendant,  if  plaintiff  assails  the  good  faith  of  the 
defendant,  the  latter  may  show  that  he  received  the  money  in 
good  faith,  without  pleading  it.8 

iHyde  v.  Hazel,  43  App.  068.  7  Holdsworth  v.  Shannon,  113  Mo. 

2  Albers  v.  Commercial  Bank,  85  Mo.    508. 

173.  8  Courtial  v.  Lowenstein,  78  App.  485. 

3  Mahan  v.  Waters,  60  Mo.  167.  The  rule  as  to  showing  fraud  under 

4  Young  v.  Kansas  City,  27  App.  101.  a  general  denial  is  discussed  in  §  577 

5  Beck  v.  Dowell,  40  App.  71.  et  seq.,  ante. 

6  Boggess  v.  Metropolitan  St.  R  Co., 
118  Mo.  328. 


THE   ANSWER.  [§§  615-617. 

§  615.  In  a  proceeding  to  qniet  title. —  In  a  proceeding  under 
the  statute  to  quiet  title,1  if  the  answer  is  a  general  denial,  the 
only  issue  raised  is  that  of  plaintiff's  possession.  If  defendant 
claims  that  he  has  title  to  the  land,  he  must  by  his  answer  show 
cause  why  he  should  not  be  required  to  bring  an  action  to  try 
sueh  title;  and  unloss  he  does  this  affirmatively  the  existence  of 
such  cause  is  not  in  issue.2 

£  GIG.  In  actions  against  railroad  company, —  Where  the 
action  is  for  the  killing  of  stock  by  a  locomotive  which  was  being 
run  without  a  train,  the  defendant  company  may  show  under  a 
general  denial  that  the  locomotive  was  being  used  by  one  of  the 
employees  of  the  company  for  his  own  purposes,  outside  of  the 
line  of  his  employment,  and  without  the  knowledge  of,  or  author- 
ity from,  the  company.3 

§  617.  In  replevin. — The  action  of  replevin  in  many  respects 
bears  a  strong  resemblance  to  that  of  ejectment.  It  involves  the 
right  of  property  and  the  possession.  The  form  of  pleading  is 
much  the  same.  Neither  party  can  know  from  the  form  of  the 
pleadings  on  what  claim  of  title,  or  line  of  proof,  the  case  will 
depend  and  proceed.  In  the  action  of  ejectment,  where  either 
party  offers  in  evidence  a  deed  in  the  chain  of  evidence,  the  ad- 
versary may  attack  it  for  fraud,  although  a  court  of  equity  would 
have  jurisdiction  to  set  it  aside.4  So  in  the  action  of  replevin, 
the  defendant  under  the  general  issue  may  assail  the  plaintiff's 
title  under  a  deed  or  bill  of  sale  for  fraud,  and  show  the  facts 
which  in  equity  would  make  it  void.5  For  in  replevin  defendant 
may  under  a  general  denial  show  anything  which  tends  to  dis- 
prove the  title  or  right  of  possession  of  plaintiff.6  He  may  show 
that  the  instrument  under  which  the  plaintiff  claims  the  prop- 
erty is  fraudulent  and  void.7  He  may  show  that  he  himself  holds 
the  goods  under  legal  process  against  the  true  owner,8  or  that  the 
goods  in  controversy  are  the  property  of  a  third  person,  held  by 
the  defendant  as  sheriff  under  a  writ  of  attachment,  and  that 
plaintiff's  claim  is  merely  colorable.9     If  the  property  replevied 

1  Rev.  Stat.  1899,  sec.  647  et  seq.  Auction  &  Com.  Co.  v.  Mason,  16  App. 

2  Murphy  v.  De  France,  23  App.  337.  473;  Pugh  v.  Williamson,  61  App.  165. 

3  Cousins  v.  Hann.  &  St.  Jos.  R.  Co.,  7  Gibson  v.  Mozier,  9  Mo.  256;  Young 
CO  Mo.  572.  Consult  also  §§  609,  613,  v.  Glascock,  79  Mo.  574;  Stern  Auc.  & 
ante.  Com.  Co.  v.  Mason,  16  App.  473. 

*  See  §  596,  ante.  8  Bosse  v.  Thomas,  3  App.  472. 

6  Christy  v.  Scott,  31  App.  331.  339.  9  Young  v.  Glascoek,  79  Mo.  574. 

6  Gibson  v.  Mozier,  9  Mo.  256;  Stern 


§  618.]        WHAT   MAT    BE    SHOWN    UNDER    GENERAL    DENIAL.  321 

was  purchased  at  a  sale  under  a  deed  of  trust,  the  invalidity  of 
the  deed  of  trust  may  be  shown  under  a  general  denial.1 

§  618.  A  general  denial  is  sufficient  to  put  the  plaintiff  to  the 
proof  of  his  title  or  right  to  the  possession,  though  the  answer 
contains  no  averment  of  title  in  the  defendant  or  in  a  stranger.2 
In  that  case  the  defendant  was  permitted  to  show  that  his  wife 
was  co-tenant  with  the  plaintiff  in  respect  to  the  ownership  of 
the  property,  and. that  at  the  time  the  writ  was  sued  out  defend- 
ant held  the  title  under  his  wife  and  for  her  use.3  Notwithstand- 
ing the  statute  which  makes  void  as  to  third  parties  a  conditional 
sale  not  evidenced  by  a  writing  put  on  record,4  such  sale  is  valid 
as  between  the  parties;  the  owner  may  place  such  conditions 
upon  its  sale  as  he  pleases,  and  such  conditions  will  be  enforced 
as  against  his  vendee.  But,  though  the  conditions  are  made,  yet 
they  may  be  waived  by  the  vendor,  and  are  waived  by  an  un- 
qualified and  unconditional  delivery  of  the  goods.  Therefore  in 
an  action  of  replevin  brought  by  the  vendor,  defendant  may  show 
under  a  general  denial  that  such  conditions  were  waived,  since 
that  plea  puts  in  issue  the  plaintiff's  right  to  the  possession  of  the 
property  at  the  commencement  of  the  action.5  It  is  not  neces- 
sary in  an  action  of  replevin  to  raise  by  a  plea  in  abatement  the 
question  of  non-joinder  of  parties  plaintiff,  but  advantage  may 
be  taken  of  the  defect  under  a  general  denial,  since  the  proof 
that  other  parties  are  interested  in  the  title  tends  directly  to  dis- 
prove the  right  of  plaintiff  to  the  possession.6 

1  Fischer  v.  Johnson,  51  App.  157.  plaintiff  to  prove  that  at  the  time  of 
2Pulliam  v.  Burlingame,  81  Mo.  111.  the  caption  he  had  a  general  or  spe- 
3  There  is  an  earlier  decision  of  the  cial  property  in  the  goods,  and  the 
supreme  court,  which  is  cited  in  the  right  of  immediate  and  exclusive  pos- 
case  just  mentioned,  as  authority  for  session.     But  as  the  Code  recognizes 
the  conclusion  there  reached,  although  no  such  plea  as  non  cepit,  and  as  noth- 
I  confess  I  am  unable  to  see  that  it  is  ing  is  said  in  the  opinion  as  to  the 
such  authority.     The  case  is  that  of  effect  of  the    general  denial    under 
Gray  v.   Parker,   38  Mo.   160,  where  the  Code,  the  decision  cannot  be  con- 
there  is  in  the  opinion  of  Wagner,  J.,  sidered  as  settling  any  principle  in- 
an  extract  from  Greenleaf  on  Evi-  volved. 
dence  to  the  effect  that  where  non        4  Rev.  Stat.  1899,  sec.  3412. 
cepit  is  pleaded  plaintiff's  title  is  ad-        5Oester  v.  Sitlington,  115  Mo.  247. 
mitted,  but  it  is  incumbent  on  him        6Upham  v.  Al'en,  76  App.  206;  Pul- 
to  prove  that  the  defendant  had  the  liam  v.  Burlingame,  81  Mo.  111. 
goods;  but  that  where  the  issue  raises        Under  §  582,  ante,  it  is  shown  that, 
the  question  of  title  it  devolves  on  the  under  the  general  denial  in  an  action 
Mo.  Code  Pl.—  21 


THE   ANSWER.  [§§  619-621. 

§  619.  In  cases  of  sale. —  "Where  the  action  is  to  recover  the 
price  of  a  specific  lot  of  grain  which  plaintiff  claims  to  have  sold 
to  defendant,  and  the  answer  is  a  general  denial,  since  plaintiff 
must  make  out  not  only  the  sale  but  also  the  delivery  of  the 
grain,  defendant  may,  under  such  denial,  give  evidence  of  any- 
thing which  would  tend  to  disprove  either  of  those  facts.  Thus, 
he  may  show  that  the  wheat  which  he  bought  was  good  wheat, 
while  the  wheat  delivered  to  him  by  plaintiff  was  spoiled  and 
damaged.1  So,  too,  in  an  action  for  the  purchase  price  of  chat- 
tels, it  may  be  shown  under  a  general  denial  that  the  chattels 
were  a  gift,  since  proof  of  a  gift  disproves  the  allegation  of  a 
sale.2 

§  620.  In  actions  on  tax-bills. —  In  an  action  on  a  special  tax- 
bill  the  defendant  must  plead  specially  any  fact  which  he  relies 
upon  to  defeat  the  legality  or  extent  of  the  charge,  as  that  the 
work  was  not  properly  authorized,  or  that  it  was  imperfectly 
executed ;  a  general  denial  puts  in  issue  only  those  allegations  of 
the  petition  which  the  statute  makes  essential  to  a  recovery.3  A 
provision  in  a  city  charter  permitting  a  defendant  to  plead  in 
reduction  or  defeat  of  the  tax-bill  any  mistake  or  error  in  its 
amount,  or  the  fact  that  the  work  was  not  done  in  a  good  and 
workmanlike  manner,  is  a  beneficial  provision  for  the  protection 
of  the  taxpayer,  who  may  or  may  not  interpose  such  defense.4  If 
the  statute  requires  that  plaintiff  must  file  a  notice  of  suit,  de- 
fendant cannot  under  a  general  denial  prove  the  failure  to  file 
such  notice.  The  fact  that  the  notice  has  been  filed  as  required 
constitutes  no  part  of  plaintiff's  case,  and  if  defendant  desires  to 
raise  the  question  he  must  specially  plead  it.5  An  action  on  a 
special  tax-bill  is  clearly  an  action  founded  in  contract,  and  is  not 
one  on  a  quantum  meruit.  If,  therefore,  defendant  pleads  the  gen- 
eral issue,  this  goes  to  the  very  foundation  of  the  plaintiff's  cause 
of  action  and  is  designed  wholly  to  defeat  it,  and  not  simply  to 
reduce  the  amount  of  the  recovery.4 

§  621.  In  actions  for  trespass. —  In  an  action  of  trespass  quare 
clausum  f regit  a  general  denial  does  not  put  the  title  in  issue.8 

of  replevin,  evidence  is  admissible  to  3  Vieths  v.  Planet  Co.,  64  App.  207; 

prove  that  plaintiff's  title  is  void  by  Carthage  v.  Badgley,  73  App.  123. 

reason  of  fraud.  *  Traders'  Bank  v.  Payne,  31  App. 

1  Montgomery  v.  Gann,  51  App.  187.  512. 

2  Blatz  v.  Lester,  54  App.  283.  5  Menefee  v.  Bell,  62  App.  659. 

6  Schergens  v.  Wetzell,  12  App.  596. 


§  621.]        WHAT   MAT   BE   SHOWN   TJNDEK    GENERAL   DENIAL.  323 

Where  defendants  are  sued  jointly  with  a  constable  in  trespass 
de  bonis  asportatis,  they  cannot  under  a  general  denial  set  up  the 
defense  that  they  were  acting  as  a  posse  to  the  constable  in  levy- 
ing an  execution,  since  such  fact,  if  it  constitutes  a  defense  at  all, 
must  be  affirmatively  pleaded.1  Though  the  burden  of  proving 
probable  cause  in  an  action  for  trespass  rests  on  the  defendant, 
yet  it  is  not  necessary  that  he  should  set  it  up  in  his  answer.8 

1  Palmer  v.  Shenkel,  50  App.  571.  2  Brown  v.  Carter,  52  Ma  46. 


CHAPTER  XXIII. 


NEW  MATTER  IN  THE  ANSWER. 


ij  623.  Pleading  new  matter. 
638.  Mode  of  pleading  it. 
624  Defenses  which  do  not  consti- 
tute new  matter. 
625.  The  defense  of  illegality. 


626.  Confession  and  avoidance. 

627.  Facts  occurring  after  the  in- 

stitution of  the  suit. 

628.  Cross-bill. 

629.  Cross-bill  between  defendants. 


§  622.  Pleading  new  matter. —  Intimately  connected  with  the 
subject  of  a  general  denial,  and  what  may  be  shown  under  such 
a  pleading,  is  the  subject  of  pleading  new  matter.  The  rule  is 
that  whenever  a  defendant  intends  to  rest  his  defense  upon  any 
fact  which  is  not  included  in  the  allegations  necessary  to  the 
support  of  the  plaintiff's  case,  he  must  set  out  in  ordinary  and 
concise  language  such  facts,  or  he  will  be  precluded  from  giving 
evidence  of  them  on  the  trial.1  Such  an  affirmative  defense  will 
not  avail  defendant  unless  he  pleads  it,  though  it  is  disclosed  by 
the  evidence;  and  in  such  case  a  finding  that  there  was  no  such 
defense  on  the  evidence  cannot  be  complained  of  by  defendant.2 
Thus,  in  order  to  prove  a  payment,  or  a  failure  of  consideration, 
or  any  other  fact  supervening  since  the  making  of  the  instrument 
sued  on,  defendant  must  plead  such  fact  specially,  since  such  de- 
fenses constitute  new  matter.3  In  actions  such  as  slander  and 
malicious  prosecution,  mitigating  circumstances  are  new  matter 
and  must  be  pleaded.4  Where  in  an  action  by  an  employee  de- 
fendant seeks  to  show  that  the  employee  has  waived  the  per- 
formance of  a  duty  by  the  employer,  or  that  the  employee  has 
assumed  certain  obvious  risks,  such  matters  are  affirmative  de- 
fenses, and  must  be  pleaded  as  such.5 


1  Northrup  v.  Miss.  Valley  Ins.  Co., 
47  Mo.  435;  Kersey  v.  Garton,  77  Mo. 
645;  Hudson  v.  Wabash  W.  R.  Co.,  101 
Mo.  13;  Flint-Walling  Mfg.  Co.  v.  Ball, 
43  App.  504. 

2  Schwartz  Com.  Co.  v.  Vanstone,  62 
App.  241.  The  rule  as  thus  broadly 
stated  does  not  apply  to  contributory 
negligence,  if  it  appears  from  plaint- 


iff's own  evidence.  See  the  cases  col- 
lated in  3  Pattison's  Digest,  Negli- 
gence, 554-558. 

» Smith  v.  Rembaugh,  21  App.  390. 

*  Buckley  v.  Knapp,  48  Mo.  152;  De- 
genhart  v.  Schmidt,  7  App.  117. 

SMcMullen  v.  Missouri,  K.  &  T.  R. 
Co.,  60  App.  231. 


§§  623-626.]  NEW  MATTER.  325 

§  623.  Mode  of  pleading  new  matter. — An  affirmative  clef  ense 
roust  be  as  clearly  and  distinctly  set  forth  in  ordinary  and  concise 
language  as  is  required  in  stating  a  cause  of  action  in  a  petition.1 

§  624.  Defenses  which  are  held  not  to  constitute  new  mat- 
ter.—  In  an  action  on  a  bond  given  by  an  agent  for  the  faithful 
performance  of  his  duties,  the  breach  of  the  bond  alleged  was 
that  the  agent  had  failed  to  account  truly  as  to  the  subject-matter 
of  his  agency.  Defendant  offered  evidence  tending  to  show  that 
a  full  adjustment  of  all  matters  relating  to  the  agency  had  been 
had;  that  the  agent  had  paid  a  portion  of  the  balance  found 
against  him  in  money  and  had  given  his  note  for  the  remainder. 
Since  this  evidence  tended  to  show  that  there  had  been  no  breach, 
the  facts  disclosed  thereby  were  not  such  as  to  constitute  new 
matter,  and  they  were  properly  admitted  in  evidence  though  not 
specially  pleaded.2  If,  in  an  action  for  breach  of  the  covenants 
in  a  deed,  the  answer  alleges  the  existence  of  good  title  in  the 
defendant  at  the  time  of  the  conveyance,  such  allegation  is  but 
an  argumentative  denial  of  the  allegations  of  the  petition,  and 
in  no  sense  new  matter.3 

§  625.  The  defense  of  illegality. —  If  the  plaintiff,  in  order  to 
make  out  his  cause  of  action,  is  compelled  to  show  that  the  con- 
tract upon  which  he  sues  is  illegal,  such  contract  should  not  be 
enforced,  whether  defendant  sets  up  the  illegality  as  a  defense 
or  not.  But  if  the  illegality  does  not  appear  from  the  contract 
itself,  and  is  not  shown  from  the  evidence  by  which  plaintiff  is 
required  to  prove  it,  but  depends  upon  extraneous  facts,  such  de- 
fense is  new  matter  and  must  be  pleaded  in  order  to  be  available.4 

§  626.  Confession  and  avoidance. —  It  may  be  stated,  as  a 
general  rule,  that  an  answer  setting  up  new  matter  by  way  of 
defense  should  confess  and  avoid  the  plaintiff's  cause  of  action.5 
And  it  is,  therefore,  generally  true  that  a  party  cannot  traverse 
and  at  the  same  time  confess  and  avoid  the  same  allegations.6 

i  Flints  Walling  Mfg.  Co.  v.  Ball,  43  *  School  District  v.  Sheidley,  138  Mo. 

App.  504.     The  question  what  is  new  672.    This  question  is  fully  discussed 

matter,  in  such  a  sense  as  to  require  in  §§  577-582,  where  the  cases  are  col- 

that   it  should  be  traversed  by  the  lated.     Consult,  also,  §§  151-160,  and 

reply,  will  be  treated  in  the  chapter  §  333,  ante. 

on  The  Reply  (ch.  XXVIII).  *  Bauer  v.  Wagner,  39  Mo.  385 ;  North- 

The  mode  of  pleading  new  matter  is  rup  v.  Miss.  Valley  Ins.  Co.,  47  Mo.  435; 

further  considered  in  §§  697,  698,  post.  State  to  use  v.  Williams,  48  Mo.  210. 

2  Wheeler  &  Wilson  M.  Co.  v.  Tins-  6  Coble  v.   McDaniel,   33    Mo.   363; 

ley,  75  Mo.  458.   See  also  §  600,  ante.  Adams  v.  Trigg,  37  Mo.  141 ;  Darrett 

» Luther  v.  Brown,  66  App.  227.  v.  Donnelly,  38  Mo.  492. 


326  THE  ANSWER.  [§  627. 

When  the  now  matter  set  up  in  the  answer  amounts  to  a  com- 
plete  defense  to  the  suit,  it  is  not  necessary  to  traverse  any  of 
the  allegations  of  the  petition.1  Thus,  where  in  a  suit  on  an  at- 
tachment bond  the  petition  alleged  as  a  breach  of  the  bond  that 
di  Fendant  h;ul  failed  to  prosecute  the  attachment  suit  without 
delay  and  with  effect,  an  answer  admitting  the  abatement  of  the 
attachment  suit  as  alleged  in  the  petition,  but  alleging  that  such 
judgment  was  not  a  final  one,  because  motions  in  arrest  of  judg- 
ment and  for  a  new  trial  were  still  pending  and  undetermined 
in  the  court  in  which  the  judgment  was  rendered,  is  not  a  con- 
fession and  avoidance,  but  in  effect  an  allegation  that  no  cause 
of  action  has  accrued  on  the  bond.2  So  also  is  a  plea  that  the 
cause  is  still  pending  in  an  appellate  court.3 

§  627,  Facts  occurring  after  the  institution  of  the  suit, — 
As  a  general  rule  the  rights  of  the  parties  to  an  action  must  be 
considered  as  fixed  by  the  state  of  facts  existing  at  the  time 
when  the  action  is  brought.  But  this  rule  is  not  universal.  For 
instance,  if  an  action  is  brought  for  the  recovery  of  money,  any 
payment  or  part  payment  which  may  have  been  made  subse- 
quently to  the  commencement  of  the  action  may  be  pleaded  in 
the  answer,  or  even  by  an  amendment  to  the  answer  in  the  nature 
of  a  plea. puis  darrein  continuance.  And  such  a  plea,  if  proved, 
will  have  the  effect  of  reducing  the  damages,  or  even  of  prevent- 
ing a  recovery,  except,  of;  course,  as  to  the  costs  which  had  ac- 
crued prior  to  the  filing  of  the  plea.4  Trover  is  another  instance 
where  the  exception  may  apply.  If  the  owner  regains  his  prop- 
erty, his  damage  is  what  he  has  lost  by  the  temporary  conver- 
sion, and  no  more;  and  defendant  may,  under  certain  circum- 
stances, surrender  to  the  plaintiff  the  possession  of  the  goods, 
even  after  the  action  brought,  and  plead  such  fact  in  his  answer.* 
And  on  the  same  principle  a  receipt  may  be  given  in  evidence, 
though  it  is  dated  and  was  given  after  the  commencement  of  the 
action,  if  it  tends  to  prove  that  the  subject-matter  of  the  action 
has  been  satisfied  in  whole  or  in  part.5  But  such  facts  cannot  be 
shown  under  a  general  denial.6 

1  Kortzendorf er  v.  St.  Louis,  52  Mo.  5  Wade  v.  Emerson,  17  Mo.  267. 
204  6  Cato  v.  Hutson,  7  Ma  142. 

2  State  to  use  v.  Williams,  48  Mo.  In  the  chapter  on  The  Reply  (ch. 
210.  The  averments  might  have  been  XXVIII)  the  question  whether  mat- 
proved  under  a  general  denial  ters  occurring  since  the  institution  of 

3  Cohn  v.  Lehman,  93  Mo.  574  the  suit  can  be  set  up  in  the  reply 
*  Ward  v.  Moflfett,  38  App.  395.  will  be  considered. 


§§  628,  629.]  NEW   MATTER.  327 

§  628.  Cross-bill.—  A  cross-bill  must  be  within  the  scope  of 
the  original  bill,  and  germane  to  its  subject-matter.1  If  the  an- 
swer does  not  seek  affirmative  relief  against  the  plaintiff,  it  can- 
not be  treated  as  a  cross-bill.2  Where  the  new  matter  in  the 
answer  is  in  the  nature  of  a  cross-bill  or  cross-action,  and  con- 
cludes with  a  prayer  for  relief,  the  rules  governing  the  granting 
of  relief  to  the  defendant  are  the  same  as  those  governing  the 
relief  asked  for  in  a  petition ;  and  if  the  prayer  is  for  general 
relief,  any  relief  appropriate  to  the  facts  alleged  and  proved  may 
be  granted.3 

§  629.  Cross-bill  between  defendants.—  This  subject  has  been 
so  fully  considered  in  chapter  II 4  that  it  is  unnecessary  to  add 
anything  here,  and  the  reader  is  referred  to  that  chapter. 

1  Boland  v.  Eoss,  120  Mo.  208.  which  new  matter  appears  in  an  an- 

2  Baer  v.  Pfaff,  44  App.  35.  See  also  swer  is  where  defendant  sets  up  a 
Jones  v.  Moore,  42  Mo.  413.  counter-claim  or  set-off,  and  these  also 

3  Snider  v.  Colman,72Mo.  568;  Bevin  partake  of  the  nature  of  a  cross-bill, 
v.  Powell,  83  Mo.  365;  Conrad  v.  How-  These  subjects  will  be  treated  in  the 
ard,  89  Mo.  217.  next  chapter. 

One  of  the  most  frequent  forms  in        4  See  §§  30-33. 


CHAPTER  XXIV. 


COUNTER-CLAIM  AND  SET-OFF. 


§  630.  Their  origin  and  nature. 

631.  What    is    included    in    these 

terms. 

632.  How  they  operata 

633.  The  statutory  provisions. 

634.  Construction  of  the  statute. 
637.  Counter-claim  defined. 

639.  Decisions    as    to    what   is    a 

counter-claim. 

640.  Must  be  pleaded. 

641.  Right  of  set-off  in  equity. 

642.  Subject-matter   of  a    pending 

action. 

643.  Distinction   between    counter- 

claim and  set-off. 
644  And  between  them  and  recoup- 
ment. 

645.  Cases  in  which  recoupment  is 

not  allowed. 

646.  Where  the  damages    are    un- 

liquidated. 

647.  There  must  be  mutuality. 

648.  Cases  illustrating  the  rule  as  to 

mutuality. 

649.  Mutuality  —  Representative  or 

guardian. 

650.  Decisions  illustrating  the  rule 

as    to    representatives    and 
guardians. 

651.  An  exception  to  the  rule  of 

mutuality. 

652.  The  rule  in  case  of  trustees. 

653.  Mutuality  —  Joint  against   in- 

dividual demand. 

654.  Same  —  Partnership  and  indi- 

vidual debts. 

655.  Same  —  In  case  of  a  surviving 

partner. 


§  656.  As  between  partners. 
657.  Mutuality  —  Surety  or  guaran- 
tor. 

659.  Mutuality  in  mechanics'  lien 

cases. 

660.  The  terms  used  in  section  605. 
601.  What  is  an  action  arising  on 

contract. 

662.  Same  — The  test. 

663.  Decisions  illustrating  the  rule 

as  to  contracts. 
664  What  is  a  transaction  within 
the  meaning  of  the  statuta 

665.  Connected  with  the  subject  of 

the  action. 

666.  Damages  arising  from  a  tort. 

667.  Effect  of  waiving  a  tort. 

668.  Where  plaintiff  elects  to  sue  in 

tort 

670.  Action  for  a  penalty. 

671.  The  debt  or  demand  must  be 

in    existence    at    the    com- 
mencement of  the  action. 

672.  How  the  right  is  affected  by 

an  assignment. 

673.  Pleading  in  case  of  set-off. 

674.  In  case  of  counter-claim. 

676.  Pleading  set-off  in  reply. 

677.  Effect  of  pleading  a  set-off  or 

counter-claim. 

678.  Defeating  a  set-off  which  has 

once  accrued. 

679.  The  rules  relating  to  set-off  and 

counter-claim  applied  in  spe- 
cific cases. 

680.  Same  —  In  proceedings  against 

stockholders. 

681.  Same  —  In  garnishment  cases. 


§  630.  Their  origin  and  nature.— The  answer  may  contain, 
besides  the  denial  and  the  statement  of  new  matter  constituting 


§§  631,  632.]  COUNTER-CLAIM   AND   SET-OFF.  329 

a  defense,  a  statement  of  any  new  matter  constituting  a  counter 
claim.1  The  right  of  set-off  did  not  exist  at  common  law,  and  is 
purely  of  statutory  origin.2  If  the  right  does  not  exist  under  the 
statute  it  does  not  exist  at  all.3  And  it  is  unnecessary  to  state 
that  this  is  equally  true  of  the  right  of  counter-claim.  Mutual 
debts  could  not  at  common  law  be  applied  in  satisfaction  of 
each  other  unless  there  was  an  express  agreement  between  the 
parties  to  that  effect.4 

§  631.  What  is  included  in  these  terms. —  Under  the  statu- 
tory term  "  counter-claim  "  is  included  what  was  before  known 
as  matter  of  set-off  and  as  matter  of  recoupment.5  Kothing  can 
be  pleaded  as  a  statutory  counter-claim  which  does  not  consti- 
tute a  demand  against  the  plaintiff.6  A  defendant  pleading  a 
set-off  occupies  substantially  the  position  of  a  plaintiff,  and  must 
have  a  subsisting  demand  which  would  afford  the  subject-matter 
for  a  cause  of  action.7  And  nothing  can  be  set  up  as  a  counter- 
claim which  is  not  a  cause  of  action  and  which  does  not  contain 
the  substance  necessary  to  sustain  an  action  by  defendant  against 
the  plaintiff,  if  the  plaintiff  had  not  sued  the  defendant.8  Thus 
a  set-off  is  an  independent  claim  which  defendant  may  bring  in 
to  extinguish  in  whole  or  in  part  the  claim  upon  which  he  is  sued, 
or  he  may  sue  upon  it  independently.9  If  he  pleads  it  as  a  set- 
off, he  in  effect  brings  an  action  for  the  amount  of  such  set-off.1" 
It  is  an  underlying  principle  of  the  doctrine  of  set-off  and  counter- 
claim that,  whenever  entire  justice  can  be  done  both  parties  by 
an  adjustment  of  their  mutual  demands,  without  violating  any  of 
the  settled  rules  of  law,  it  ought  to  be  done.11 

§  632.  How  they  operate. —  Mutual  demands  do  not  offset 
and  adjust  themselves  by  their  own  vigor  or  by  operation  of  law, 
without  any  accounting  or  settlement  between  the  parties.12 
Neither  by  a  bill  in  equity,  nor  by  an  action  at  law,  can  a  debtor 
compel  his  creditor  to  allow  a  set-off  against  a  debt  which  plaint- 
iff admits  to  be  due  the  creditor;  he  must  wait  until  his  creditor 

1  Rev.  Stat.  1899,  §  604  6  Gordon  v.  Brunei-,  49  Mo.  570. 

2  Fink  v.  Bruihl,  47  Mo.  173;  State  6  Barnes  v.  McMullins,  78  Mo.  260. 
ex  reL  v.  Eldridge,  65  Mo.  584;  Kort-  7  Barber  v.  Baker,  70  App.  680. 
john  v.   Continental    Nat.   Bank,  63  8  McPherson  v.  Meek,  30  Mo.  345. 
App.  166;    Haseltine  v.  Thrasher,  65  9  Wright  v.  Salisbury,  46  Mo.  26. 
App.  334.  w  Russell  v.  Owen,  61  Mo.  185. 

sFrowein  v.  Calvird,  75  App.  567.  n  Green  v.  Conrad,  114  Mo.  651. 

4  Kort  John  v.  Continental  Nat.  Bank,  12  Merchants'  Ins.  Co.  v.  Hill,  12  App. 
63  App.  166.  148. 


THE  ANSWER.  [§§  033,  034. 

sues  upon  the  debt,  and  then  plead  the  set-off  or  counter-claim 
by  wav  o(  defense.1 

'  §  633.  The  statutory  provisions.— A  counter-claim  must  be 
one  existing  in  favor  of  a  defendant  and  against  a  plaintiff,  be- 
tween whom  a  several  judgment  might  be  had  in  the  action,  and 
must  arise  out  of  one  of  the  following  causes  of  action:  first,  a 
cause  of  action  arising  out  of  the  contract  or  transaction  set 
forth  in  the  petition  as  the  foundation  of  the  plaintiff 's  claim,  or 
connected  with  the  subject  of  the  action;  second,  in  an  action 
arising  on  contract,  any  other  cause  of  action  arising  also  on  con- 
tract, and  existing  at  the  commencement  of  the   action.     De- 
fendant may  set  forth  as  many  counter-claims  as  he  has,  whether 
legal  or  equitable  or  both,  but  they  must  each  be  separately  stated 
so  as  to  be  intelligibly  distinguished.2     The  matter  constituting 
the  counter-claim  must,  like  the  cause  of  action  stated  in  the  pe- 
tition, be  set  forth  in  ordinary  and  concise  language,  without 
unnecessary  repetition.3    If  any  two  or  more  persons  are  mut- 
ually indebted  in   any  manner  whatsoever,  and   one   of  them 
commences  an  action  against  the  other,  one  debt  may  be  set  off 
against  the  other,  although  such  debts  are  of  a  different  nature.4 
§634.  Construction  of  the  statute.5— Our  courts  were  in- 
clined at  first  to  put  a  narrow  construction  on  the  provisions  of 
section  005,  supra.6     In  Jones  v.  Moore,1  Judge  Holmes,  speaking 
for  the  court,  says:  "A  counter-claim  must  be  of  the  nature  of 
an  action  at  law.     Different  defenses  or  counter-claims  may  be 
separately  stated  in  the  same  answer;  but  equitable  matter,  that 
is  an  equity  for  relief,  can  constitute  a  defense  only,  and  not 
properly  a  counter-claim.    Equity  may  afford  relief  in  some  cases 
by  decreeing  the  payment  of  money  or  a  compensation  by  way 
of  damages,  and  in  some  very  special  cases  may,  perhaps,  direct 
an  assessment  of  damages,  but  the  jurisdiction  must  be  founded 
upon  some  equity.     That  equity  may  be  a  defense  to  the  cause 
of  action  at  law,  or  it  may  not.     If  it  be  not  a  defense,  it  cannot 
be  joined  in  the  same  suit.    A  cause  of  action  which  wholly  defeats 
the  demand  of  the  plaintiff  cannot  be  a  counter-claim."    (p.  419.) 
The  above  case  was  an  action  upon  promissory  notes.     The  an- 

1  Abshire  v.  Board  of  Education,  18  ered  with  reference  to  the  statute 

App.  573.  governing  a  debtor's  exemptions,  see 

*  Rev.  Stat.  1899,  sec.  805.  §  641,  post,  notes  5-7,  p.  335. 
3 Rev.  Stat.  1899,  sec.  604.  6 See  §  633,  ante. 

*  Rev.  Stat.  1899,  sec.  4487.  7  42  Mo.  413. 
6  That  this  statute  must  be  consid- 


§  635.]  COUNTER-CLAIM   AND    SET-OFF.  331 

swer  admitted  the  execution  of  the  notes,  and  set  up  the  follow- 
ing equitable  defense :  That  the  notes  were  secured  by  a  deed  of 
trust  under  which  the  trustee  sold  the  land  conveyed  thereby ; 
that  in  making  the  sale  the  trustee  did  not  follow  the  terms  of 
the  deed  of  trust,  and  that  the  sale  was  collusive  and  unfair;  that 
by  reason  of  these  facts  the  land  was  bought  in  by  the  plaintiff 
at  a  totally  inadequate  price ;  and  the  answer  prayed  for  equita- 
ble relief,  and  also  for  a  recoupment  of  damages.  The  supreme 
court  justified  its  decision  by  holding  that  the  effect  of  the  judg- 
ment in  the  court  below  was  to  adjudge  against  the  defendant 
the  equities  raised  in  the  answer,  and  that  a  prayer  for  recoup- 
ment of  damages  does  not  constitute  a  counter-claim.  The  lan- 
guage of  the  learned  judge  is:  "This  answer  contained  an 
equitable  defense,  but  not  a  counter-claim.  A  recoupment  or 
set-off  is  not  of  the  nature  of  a  defense  or  plea  in  bar,  but  admits 
the  cause  of  action  and  claims  an  allowance  in  diminution  of  the 
plaintiff's  demand ;  and  it  is  not  a  counter-claim." l 

§  635.  It  is  not  altogether  clear  just  how  far  the  court  intended 
to  go  in  the  foregoing  case.  But  if  it  was  intended  to  decide 
that  an  equitable  counter-claim  could  not  be  set  up  to  an  action 
at  law,  it  has  long  since  been  overruled,  and  the  right  to  plead 
such  a  counter-claim  is  now  fully  recognized  by  our  courts.  In 
a  comparatively  recent  case,2  the  supreme  court,  speaking  through 
Brace,  J.,  says :  "  The  defense  may  be  either  legal  or  equitable, 
and  the  counter-claim  may  be  either  legal  or  equitable,  if  in  favor 
of  the  defendant  and  against  the  plaintiff,  arising  out  of  the 
transaction  set  forth  in  the  petition  or  connected  with  the  sub- 
ject of  the  action,  upon  which  counter-claim  defendant  may  have 
judgment.  It  is  settled  law  in  this  state  that  under  the  Code  in 
actions  of  ejectment  the  defendant  may  by  answer  interpose  an 
equitable  defense,  and  have  his  equities  tried  and  determined  in 
that  action,  without  having  to  resort  to  an  independent  suit  in 
equity.  Such  being  the  case,  then,  according  to  the  plain  read- 
ing of  the  Code,  affirmative  relief  may  certainly  be  given  to  the 
defendant  upon  his  answer  in  all  cases  where,  from  the  nature 
of  the  subject-matter  and  the  relations  of  the  parties,  a  specific 
remedy  in  his  favor  is  possible  according  to  the  doctrines  of 
equity  jurisprudence."  (p.  5CA.)  And  the  decision  of  the  court 
in  Primm  v.  Raboteau*  that  in  an  action  of  ejectment  defendant 
might  obtain  equitable  relief  in  the  nature  of  a  bill  of  peace  re- 

> 42  Mo.,  p.  419.  2  Swope  v.  Weller,  119  Mo.  556.  «  56  Mo.  407. 


332  the  answek.  [§§  636,  637. 

straining  the  plaintiff  from  further  vexing  and  harassing  defend- 
ant with  repeated  ejeotment  suits,  is  fully  approved  and  followed. 

8  636.  In  Tarwater  v.  Hannibal  &  St.  J.  R.  Co.,1  which  was 
an  aotion  for  injury  to  stock,  the  answer  contained  an  allega- 
tion that  plaintiff  carelessly  and  negligently  turned  the  animal 
out  upon  the  uninclosed  lands  adjoining  the  railroad,  and  that 
by  means  of  that  act  of  gross  negligence  on  the  part  of  plaint- 
iff the  animal  got  upon  the  track  and  was  run  over,  whereby 
defendant's  cars  were  thrown  off  the  track  and  injured  to  the 
amount  of  $5,000,  and  that  the  injury  done  to  said  stock  was  the 
same  injury  mentioned  in  the  plaintiff's  petition;  this  being  fol- 
lowed by  a  prayer  for  judgment  against  the  plaintiff  for  $5,000 
damages.  It  was  held  that  this  answer  neither  contained  any 
special  defense  to  the  plaintiff's  cause  of  action,  nor  was  it  a 
counter-claim.  But  the  court  held  further  that,  if  a  counter-claim, 
it  was  in  the  nature  of  a  cross-action,  and  that  the  trial  court 
committed  no  error  in  striking  it  out,  since,  as  an  independent 
cause  of  action  arising  out  of  the  same  transaction,  it  stated  no 
additional  facts  which,  if  true,  and  notwithstanding  that  the  facts 
stated  in  the  petition  stood  confessed  as  true  also,  would  entitle 
the  defendant  to  a  judgment  against  the  plaintiff.  "Whether  this 
decision  would  now  be  recognized  as  correct  for  the  reasons  given 
may  be  doubted.  But  it  is  plain  that  the  facts  constituting  the 
counter-claim  were  so  mingled  with  the  facts  constituting  the  de- 
fense that  the  court  might  properly  have  disregarded  it  for  that 
reason  alone.2 

§  637,  Counter-claim  defined. —  I  find  in  Holzbauer  v.  Heine* 
so  clear  a  definition  of  the  term  "  counter-claim,"  as  used  in  the 
codes,  that  I  insert  here  a  somewhat  extended  extract  from  the 
opinion.  '*  The  term  '  counter-claim '  is  new  to  the  law,  and  not 
to  be  found  in  the  dictionaries,  and  some  of  the  New  York  judges 
have  animadverted  with  great  severity  on  the  framers  of  the 
Code  for  using  a  term  not  only  new,  but  which  had  no  definitely 
established  legal  meaning.  But  surely  the  term  is  sufficiently 
plain  and  simple.  Where  the  defendant  has  against  the  plaintiff 
a  cause  of  action  upon  which  he  might  have  maintained  a  suit, 
such  cause  of  action  is  a  counter-claim.  The  parties,  then,  have 
cross-demands,  and,  in  effect,  there  are  two  causes  of  action  be- 
fore the  court  for  trial  in  the  same  suit.  Both  parties  are  to  a 
certain  extent  plaintiffs  and  both  defendants.     The  answer  then 

>  42  Mo.  19a  2  see  §  673,  post.  3  37  Mo.  44a 


§§  63S,  639.]  COUNTEE-CLAIM   ANT)   SET-OFF.  333 

does  not  substantially  differ  from  a  petition,  and  the  reply  to  the 
answer  performs  substantially  the  same  office  as  the  answer  to 
the  petition.  Each  party  claims  affirmative  relief  from  the  other. 
If  both  parties  establish  their  claims,  the  judgment  is  rendered 
for  the  one  or  the  other,  according  as  his  demand  may  be  found 
to  be  in  excess."  (p.  444.)  Notwithstanding  this  logical  defini- 
tion of  the  term,  the  learned  judge  goes  on  to  state  that "  where 
the  defendant  sets  up  a  counter-claim,  the  presumption  is  that  the 
plaintiff  has  a  good  cause  of  action  against  him,  and  he  proposes 
to  meet  it  by  establishing  another  cause  of  action  against  the 
plaintiff."  If  it  is  intended  to  say  that  such  is  the  legal  pre- 
sumption, it  may  be  conceded  to  be  true  in  the  case  of  a  set-off. 
But  the  purpose  of  the  Code  in  providing  a  counter-claim  in  ad- 
dition to  a  set-off  is  manifestly  to  avoid  this  result,  and  to  enable 
a  defendant  at  the  same  time  to  deny  that  plaintiff  has  any  cause 
of  action  against  him,  and  yet  in  the  same  proceeding  to  bring 
an  action  against  the  plaintiff.  Such  a  distinction  is,  I  think, 
recognized  in  McAdow  v.  Boss,1  where  the  opinion,  containing  a 
suggestion  that  the  respondent  in  the  case  seemed  to  make  no 
distinction  between  a  counter-claim  and  a  set-off,  proceeds  as  fol- 
lows: "It  is  not  required  that  a  counter-claim  should  be  a  liqui- 
dated demand,  nor  is  it  required  that  there  should  be  any  mutual 
indebtedness  existing  between  the  parties.  The  law  au- 

thorizing one  debt  to  be  set  (^against  another  requires  the  debts 
so  set  off  to  be  mutual  debts  existing  between  the  parties,  which 
excludes  the  idea  of  unliquidated  damages,  and  is  altogether  dif- 
ferent from  a  counter-claim,  each  defense  being  governed  by  the 
particular  statute  relating  thereto."     (pp.  204,  207.) 2 

§  638.  Under  the  first  subdivision  of  section  605  a  counter-claim 
may  be  interposed  in  the  same  form,  whether  plaintiff's  action  be 
ex  delicto  or  ex  contractu;  for  the  facts  being  precisely  the  same  in 
both  phases  of  the  action,  the  counter-claim  arises  upon  the  ex- 
press terms  of  the  statute,  and  is  equally  available.3 

§  (>39.  Decisions  as  to  what  is  a  counter-claim. —  A  plea  of 
a  partial  failure  of  consideration  is  not  a  counter-claim.4  And 
the  same  is  true  of  equitable  matter  constituting  simply  a  de- 

1  53  Mo.  199.  in  Jones  v.  Moore,  42  Mo.  413,  and  in 

2  That  from  the  pleading  of  a  coun-  Hay  v.  Short,  49  Mo.  139. 
ter-claim  there  does  not  arise    any        3Heman  v.  McNamara,  77  App.  1. 
legal  presumption  of  the  justice  of  the  This  point  is  fully  discussed  in  §  060, 
plaintiff's  demand  is  also  recognized  post. 

*  Carpenter  v.  Myers,  32  Mo.  213. 


THE   ANSWER.  [§§  640,  041. 

Fense  to  the  legal  causes  of  action,  even  though  there  is  a  prayer 
for  a  recoupment  of  damages.1  A  plea  of  payment,  even  though 
the  answer  sets  up  an  account  showing  the  payments,  is  not  a 
counter-claim,  but  merely  a  plea  in  bar.2  Where  A.  brings  an 
action  against  B.  on  the  individual  liability  of  defendant,  unset- 
tled partnership  accounts  between  the  parties  cannot  be  set  up 
by  way  of  counter-claim.3  Under  the  last  section  of  the  statute 
which  is  set  out  in  section  633,  a?ite,i  it  is  not  necessary  that  the 
cross-demands  should  grow  out  of  the  contract  or  cause  of  ac- 
tion upon  which  plaintiff  sues ;  they  may  be  of  a  diiferent  nat- 
ure. The  only  requirement  of  the  statute  is  that  the  debts 
must  be  such  as  to  entitle  plaintiff  to  an  action  against  defend- 
ant, and  defendant  to  an  action  against  plaintiff.  This  was  the 
rule  at  common  law,5  and  is  likewise  the  rule  under  the  Code.6 
This  is  one  of  the  differences  between  the  statutory  counter- 
claim and  set-off  which  will  be  more  fully  referred  to  hereafter.7 
A  set-off  may  be  pleaded  whenever  the  plaintiff  is  individually 
liable  for  the  debt  pleaded  as  a  set-off,  and  the  claims  are  such 
as  may  be  the  subject  of  set-off.8 

§  640.  Must  he  pleaded. —  A  set-off  must  be  pleaded;  it  can- 
not be  proved  under  a  plea  of  payment.9 

§  641.  Right  of  set-off  in  equity. —  The  jurisdiction  of  equity 
to  afford  relief  where  defendant  has  a  cross-demand  is  of  ancient 
origin  and  existed  prior  to  any  statute  of  set-off,  and  still  exists 
independent  of  any  statute.  But  courts  of  equity  are  often  en- 
abled under  the  statute,  on  the  well  known  principle  of  follow- 
ing the  law,  to  afford  more  efficient  relief,  and  in  a  greater  vari- 
ety of  cases,  than  could  have  been  done  before  the  statute  was 
adopted.10  One  of  the  recognized  grounds  upon  which  equity 
interposes  its  relief  in  favor  of  a  cross-demand  is  the  inability  of 
defendant  to  avail  himself  of  a  legal  offset.11  The  mere  existence 
of  cross-demands  will  not  be  sufficient  to  justify  a  set-off  in  equity 
against  a  nominal  owner  or  assignee  without  value;  there  must 
be  some  fact  disclosing  imminent  danger  of  loss,  such  as  insolv- 

1  Jones  v.  Moore,  42  Mo.  413.    See        7  See  §  643,  post. 

also  in  this  connection  Glover  v.  Hen-  8  Weiss  v.  Wahl,  5  App.  408. 

derson,  120  Mo.  3oT.  9  Oldham  v.  Henderson,  4  Mo.  295; 

2  Holzbauer  v.  Heine,  37  Mo.  443.  Holzbauer  v.  Heine,  37  Mo.  443.    See 

3  Berthold  v.  O'Hara,  121  Mo.  88.  §§  673-677,  post. 

«  Rev.  Stat.  1890,  sea  4487.  w  Barnes  v.  McMullins,  78  Mo.  260. 
'•Whaley  v.  Cape,  4  Mo.  233,andAus-       n  Washington  Sav.  Bank  v.  Butch- 
tin  v.  Felac  I.  8  Mo.  309.  en>'  &  Drovers'  Bank,  130  Mo.  155,  164. 
bMcCuin  v.  Frazier,  38  App.  63. 


§§  642,  643.]  COUNTER-CLAIM   AND    SET-OFF.  335 

ency  or  non-residence.1  Insolvency  or  non-residence  often  fur- 
nishes a  ground  upon  which  a  court  of  equity  will  declare  an  off- 
set where  it  would  not  be  allowed  at  law.2  If  the  demand  which 
is  sought  to  be  set  off  is  definite  and  certain,  and  the  insolvency 
of  the  adverse  party  is  admitted,  equity  may  give  full  and  final 
redress  by  decreeing  a  set-off  or  any  other  relief  consistent  and 
proper  in  the  case.3  A  demand  cannot,  in  equity  any  more  than 
at  law,  be  set  off  because  of  the  insolvency  of  the  plaintiff,  unless 
it  existed  against  the  plaintiff  and  in  favor  of  the  defendant,  at 
the  time  of  the  commencement  of  the  suit,  and  had  then  become 
due.4  The  equitable  rule  that  the  insolvency  of  a  party  against 
whom  the  set-off  is  evoked  will  not  prevent  the  allowance  of  the 
set-off  has  no  application  where  the  statutory  exemptions  are 
claimed,  and  will  be  nullified  by  such  allowance;5  for  the  stat- 
ute providing  for  set-off  must  always  be  construed  with  reference 
to  the  exemption  statute.6  In  no  case  will  the  equitable  juris- 
diction be  exercised  in  favor  of  an  unliquidated  cross-demand 
which  is  ex  delicto  in  its  nature.7 

§  642.  Subject-matter  of  a  pending  action. —  If  while  an  ac- 
tion is  pending  the  plaintiff  therein  is  sued  by  the  defendant,  the 
plaintiff  in  the  first  action  may  in  the  second  action  set  off  the 
subject-matter  of  the  original  action;  and  that,  too,  though  it  may 
have  been  reduced  to  a  judgment.8  Where  a  bank  sues  its  cashier 
on  his  bond  for  wrongfully  permitting  an  overdraft,  it  may  never- 
theless set  up  such  overdraft  as  a  counter-claim  in  an  action 
brought  against  it  to  recover  the  amount  of  the  cashier's  deposit 
in  the  bank,  though  such  deposit  had  been  assigned  by  the  cashier 
to  the  plaintiff.9  Where  there  is  an  attachment  for  rent,  defend- 
ant cannot  set  up  as  a  counter-claim  damages  caused  by  the  levy- 
ing of  such  attachment.10 

§  643.  Distinction  between  counter-claim  and  set-off, — There 
is  an  essential  distinction  between  a  set-off  and  a  counter-claim; 
a  set-off  is  not  co-extensive  with  a  counter-claim,  but  lacks  many 
of  its  essential  features.11  In  fact,  the  old  doctrine  of  set-off  has 
little  analogy  to  the  counter-claim  under  our  statute.12    A  set-off 

i  Gemmell  v.  Hueben,  71  App.  291.        '  Barnes  v.  McMullins,  78  Mo.  260. 

2  Foote  v.  Clark,  102  Mo.  394.  8  Qunn  v.  Todd,  21  Mo.  303. 

3  Field  v.  Oliver,  43  Mo.  200.  9  St.  Louis  Pub.  Schools  v.  Broadway 
*  Storts  v.  George,  150  Mo.  1.  Sav.  Bank,  12  App.  104,  84  Mo.  56. 

5  Lewis  v.  Gill,  76  App.  504.  w  Hembrock  v.  Stark,  53  Mo.  588. 

6  Wagner  v.  North  Furn.  &  Carp.       ll  Heman  v.  McNamara,  77  App.  1. 
Co.,  63  App.  206;   Lewis  v.  Gill,  76       12  Empire  Transp.  Co.  v.  Boggiano,  52 
App.  504.  Mo.  294. 


336  THE   ANSWER.  [§  644. 

is  a  cross-debt;  it  is  a  mode  of  defense  whereby  the  defendant 
acknowledges  the  justice  of  the  plaintiff's  demand  on  the  one 
hand,  and  on  the  other  sets  up  a  demand  of  his  own  to  counter- 
balance  it  either  in  whole  or  in  part.1  And  the  statute  which 
authorizes  one  debt  to  be  setoff  against  another2  requires  the 
debts  so  set  off  to  be  mutual  debts  existing  between  the  parties, 
which  excludes  the  idea  of  unliquidated  damages,  and  thus  dif- 
fers from  a  counter-claim.  For  it  is  not  required  that  a  counter- 
claim should  be  a  liquidated  demand,  nor  that  there  should  be  a 
mutual  indebtedness  existing  between  the  parties.  If  the  cause 
of  action  arises  out  of  the  contract  or  transaction  set  forth  in  the 
petition,  or  is  connected  with  the  subject  of  that  action,  it  may 
be  pleaded  as  a  counter-claim,  whether  the  damages  claimed  by 
defendant  are  liquidated  or  not.3  It  is  not  only  immaterial  in 
such  a  case  whether  the  counter-claim  sets  up  a  liquidated  or  un- 
liquidated demand,  but  it  is  also  immaterial  whether  it  presents 
a  legal  or  equitable  cross-suit;  but  as  a  set-off  can  be  pleaded  only 
where  there  is  a  mutual  indebtedness,  it  can  never  be  based  upon 
an  unliquidated  demand.4 

§  644.  And  between  them  and  recoupment. —  The  distinction 
between  a  set-off  and  recoupment  is  now  important  only  from 
the  fact  that  the  former  must  arise  from  contract,  and  can  only 
be  used  in  an  action  founded  upon  contract;  while  the  latter 
may  spring  from  a  wrong,  provided  it  arose  out  of  the  transac- 
tion set  forth  in  the  petition,  or  was  connected  with  the  subject 
of  the  action.  In  other  words,  the  term  "  recoupment "  is  now  em- 
braced in  the  term  "  counter-claim." 5  The  original  theory  of  a  re- 
coupment was  that  defendant  admitted  the  plaintiff's  right  of 
action,  but  alleged  that  plaintiff  had  also  committed  breaches  of 
the  same  contract  to  defendant's  injury,  and  that  defendant's 
damages  should  be  considered  in  reduction  of  the  amount  of 
plaintiff's  recovery.6  But  the  sphere  of  recoupment  is  now  much 
enlarged ;  and  defendant  may  recover  a  balance  found  to  be  due 
him  as  well  by  recoupment  as  by  counter-claim.7  The  defendant 
may  recoup  damages,  even  though  he  could  not  have  maintained 
an  action  against  the  plaintiff  to  recover  for  the  injury  out  of 
which  the  right  of  recoupment  grows.    Thus  if  an  administrator 

>  Zerbe  v.  Missouri,  K.  &  T.  R  Co.,  80  &  Hay  v.  Short,  49  Ma  139;  Gordon 

App.  414.  v.  Bruner,  49  Mo.  570. 

'*  Rev.  Stat.  1899.  sec.  4487.  «  Wagner  v.  Dette,  2  App.  254. 

» Mc Adow  v.  Ross,  53  Mo.  199.  t  Gordon  v.  Bruner,  49  Mo.  570;  Wag- 

*  Heman  v.  McXamara,  77  App.  1.  ner  v.  Dette,  2  App.  254 


§§  645,  646.]  COUNTER-CLAIM   AND    SET-OFF.  337 

sues  for  rent  due  under  a  lease  from  his  intestate,  defendant  may 
recoup  the  damages  arising  from  a  breach  of  the  covenant  to  re- 
pair which  was  contained  in  the  lease.1  In  an  action  for  work 
done  by  plaintiff  under  a  contract,  defendant  may  waive  his  right 
to  refuse  all  payment,  and  may  recoup  from  plaintiff  the  reason- 
able value  of  whatever  was  necessary  to  complete  the  work  ac- 
cording to  the  contract;  but  defendant  could  not  plead  as  a  set-off 
what  it  actually  cost  him  to  have  the  work  completed  in  a  proper 
manner.2 

§645.  Cases  in  which  recoupment  is  not  allowed. —  In  an 
action  by  a  servant  for  wages,  defendant  cannot  recoup  damages 
for  a  tort  committed  by  the  plaintiff,  consisting  of  an  abuse  of 
his  position  and  privileges  as  defendant's  servant.3  In  an  action 
of  forcible  entry  and  detainer,  defendant  cannot  set  up  damages 
to  himself  growing  out  of  the  contract.4  Plaintiff  built  a  boat 
hull  for  defendant,  which  he  delivered  two  months  after  the 
time  agreed  upon,  but  it  was  accepted  by  defendant  without 
objection.  In  an  action  by  plaintiff  for  the  price  of  the  boat  de- 
fendant could  not  recoup  speculative  damages,  which  he  claimed 
to  have  suffered  in  the  loss  of  profits  on  account  of  being  de- 
prived of  the  boat  during  the  two  months.5 

§  646.  Where  the  damages  are  unliquidated. —  It  has  already 
been  shown 6  that  one  of  the  distinctions  between  a  set-off  and  a 
counter-claim  is  that  in  the  former  case  unliquidated  damages 
cannot  be  pleaded,  while  in  case  of  a  counter-claim  it  is  immate- 
rial that  the  damages  are  not  liquidated.  There  are  a  few  de- 
cisions on  this  point  which  are  worthy  of  note  in  this  connection. 
Where  defendant  took  out  a  policy  of  insurance  with  plaintiff, 
and  gave  his  notes  for  the  premiums  on  the  express  condition 
that  plaintiff  would  make  to  defendant  a  loan  of  money  to  a  cer- 
tain amount,  but  plaintiff  failed  to  make  the  loan,  defendant 
may,  when  an  action  is  brought  on  the  premium  notes,  set  up  by 
way  of  counter-claim  the  damages  suffered  by  him  in  consequence 
of  plaintiff's  refusal  to  make  the  loan.7  The  owner  of  a  cargo 
which  has  been  lost  or  damaged  by  negligent  navigation  on  the 

1  Green  v.  Bell,  3  App.  291.  5  Taylor  v.  Maguire,  12  Mo.  313,  13 

2  Fletcher  v.  Milburn  Mfg.  Co.,  35  Mo.  517.  For  a  further  instance  of  re- 
App.  321.  coupment,  see   Madison  v.   Danville 

3  Walker  v.  Lewandovska,  15  App.  Mining  Co.,  65  App.  564. 
581.  643,  ante. 

*  Johnson  v.  Hoffman,  53  Mo.  504.  ?  Life  Ass'n  v.  Cravens,  60  Mo.  388. 

Mo.  Code  Pi 22 


TUE   ANSWER.  [§  647- 

part  of  the  carrier  may  recover  damages  therefor  as  a  counter- 
claim in  an  action  for  the  freight,  notwithstanding  the  damages 
are  unliquidated.1  It  is  true  it  has  been  held  by  the  court  of 
appeals  and  by  the  supreme  court  that  where  an  action  is  brought 
upon  an  appeal  bond,  or  upon  an  attachment  bond,  a  set-off  is 
not  allowable,  since  a  cause  of  action  on  such  bonds  is  for  unliq- 
uidated  damages.2  This  ruling  cannot  be  questioned  if  it  is  lim- 
ited to  a  construction  of  section  44S7,:!  which  relates  to  set-off, 
since  that  section  refers  exclusively  to  debts,  and  expressly  pro- 
vides that  the  party  must  be  "  mutually  indebted."  In  fact  this 
point  was  expressly  so  ruled  in  State  ex  rel.  v.  Modrell*  which 
was  an  action  upon  an  executor's  bond.  But  in  none  of  these 
cases  was  the  decision  intended  to  apply  to  what  is  now  section 
(>05.5  For  an  action  on  an  appeal  bond  is  an  action  on  a  con- 
tract. So  is  an  action  on  an  attachment  bond.  The  judgment 
pleaded  as  a  set-off  in  the  case  decided  by  the  court  of  appeals 
was  also  a  contract.6  And  in  the  supreme  court  case  the  breach 
of  the  covenants  of  a  lease  was  a  breach  of  contract.  It  is  not 
probable,  therefore,  that  either  of  these  courts  intended  to  hold 
that  the  judgment  in  the  one  case,  and  the  breach  of  the  cove- 
nants in  the  other,  could  not  be  pleaded  as  a  counter-claim;  for 
such  holding  would  be  practically  repugnant  to  the  second  sub- 
division of  section  605.7  In  fact,  the  supreme  court  has  recently 
expressly  held  that  in  an  action  on  an  appeal  bond  a  counter- 
claim may  be  pleaded,  whether  the  damages  to  be  recovered  by 
plaintiff  are  considered  as  damages  which  are  liquidated  or  un- 
liquidated.8 

§  647.  There  must  he  mutuality. —  As  defendant,  when  plead- 
ing a  counter-claim  or  set-off,  occupies  the  position  of  a  plaintiff, 
and  the  plaintiff  then  occupies  the  position  of  a  defendant,  a  de- 
mand can  never  be  pleaded  as  a  counter-claim  or  set-off  unless 
it  is  such  as  would  entitle  the  defendant  to  maintain  an  inde- 
pendent action  on  it  against  the  plaintiff.  Therefore  there  must 
be  mutualit}'.  So  far  as  section  4487 9  is  concerned,  which  re- 
lates solely  to  set-offs,  and  in  which  the  underlying  principle 

1  Conrad  v.  De  Montcourt,  138  Mo.        5  Rev.  Stat.  1899. 

81L  «See  Smith  v.  Moore,  53  App.  525, 

2  May  v.  Kellar,  1  App.  381;  State    531. 

ex  reL  v.  Eldridge,  65  Mo.  584  7  Rev.  Stat  1809. 

3  Rev.  Stat.  1899.  8  Green  v.  Conrad,  114  Mo.  651. 
« 15  Mo.  421.                                                  9  Rev.  Stat.  1899. 


§§  648,  649.]  COUNTEE-CLAIM   AND    SET-OFF-  339 

is  that  only  mutual  debts  may  oe  set  off,1  when  the  statute  speaks 
of  mutuality  of  demands,  it  means  that  the  indebtedness  must  be 
such  as  to  entitle  plaintiff  to  an  action  against  defendant  and 
defendant  to  an  action  against  plaintiff.2  Agreements  to  allow 
individual  debts  to  be  set  off  against  a  joint  claim  can  only  be 
made  effectual  by  the  concurrence  of  all  of  the  joint  creditors.3 

§  64S.  Cases  illustrating  the  rule  as  to  mutuality. —  A  judg- 
ment against  the  payee  of  a  promissory  note  cannot  at  law  be 
set  off  against  the  indorsee  of  such  payee,  although  the  note  was 
transferred  after  its  maturity.4  A  claim  by  plaintiff  against  a 
railroad  company  for  damages  on  account  of  the  destruction  of 
his  barn  by  fire  cannot  be  reduced  by  the  amount  of  money 
plaintiff  has  received  from  an  insurance  company  as  an  indem- 
nity for  the  loss  of  the  same  barn,  since  the  railroad  company  is 
not  a  party  to  the  insurance  contract,  and  has  no  interest  in  it.5 
Damages  done  to  A  by  the  tortious  act  of  B  cannot  be  set  off 
against  damages  done  to  A  by  the  separate  tortious  act  of  C." 
Where  the  demand  sued  on  by  plaintiff  has  come  into  his  hands 
by  assignment  through  several  intermediate  assignees,  defendant 
cannot  set  off  a  demand  in  his  favor  against  one  of  the  interme- 
diate assignees  who  held  the  claim  before  it  was  due.7 

§649.  Mutuality  —  Eepresentative  or  guardiau. —  Section 
44S9 8  provides  that,  in  suits  brought  by  administrators  and  ex- 
ecutors, debts  existing  against  the  deceased  and  belonging  to  the 
defendant  at  the  time  of  the  death,  may  be  set  off  by  the  defend- 
ant in  the  same  manner  as  if  suit  had  been  brought  by  the  de- 
ceased ;  but  it  further  provides  that  no  demand  against  an  execu- 
tor or  administrator  in  his  individual  capacity  shall  be  allowed 
as  a  set-off  in  any  action  brought  by  the  executor  or  administra- 
tor upon  a  contract  made  by  him  in  his  representative  capacity, 
whether  the  contract  shows  on  its  face  or  not  the  representative 
capacity  in  which  he  contracted.  Where  one  was  sued  by  an 
administrator  for  money  claimed  by  the  administrator  to  have 
been  received  by  the  defendant,  but  which  equitably  belonged 
to  the  intestate,  defendant  pleaded  as  a  counter-claim  that  he 
was  a  surety  for  the  intestate,  on  certain  notes  which  had  been 

1  Haseltine  v.  Thrasher,  65  App.  334;  6 Matthews  v.  Mo.  Pac.  R.  Co.,  143 
Gemmell    v.   Hueben,    71    App.    201;     Mo.  645. 

Frowein  v.  Calvin  I.  75  App.  567.  6  Arnold  v.  Sayings  Co.,  76  App.  159. 

2  Weiss  v.  Wahl,  5  App.  408.  ?  Frowein  v.  Calvird,  75  App.  567. 
'Higgins  v.  Cartwright,  35  App.  600.        8  Rev.  stat.  1899. 

*  Gemmell  v.  Hueben,  71  App.  291. 


34:0  THE   ANSWER.  [§  65(X 

proved  against  the  estate,  and  which  he  had  paid  after  they 
were  so  proved.  It  was  held  that,  as  the  notes  were  not  paid  by 
defendant  as  surety  until  after  they  had  been  allowed  against  the 
(-state  of  the  principal,  they  did  not  belong  to  the  defendant  at 
the  time  of  the  intestate's  decease,  and  therefore  did  not  come 
within  the  statute.1  If  the  administrator  sues  on  a  demand  ac- 
cruing after  the  death  of  the  intestate,  defendant  cannot  set  off 
a  claim  against  deceased  which  accrued  in  his  life-time.2  And 
this  rule  applies  to  an  action  by  an  administrator  for  the  conver- 
sion of  property  owned  by  her  as  such.3  The  indebtedness  of  a 
legatee  or  distributee  to  the  estate  constitutes  assets  which  it  is 
the  duty  of  the  executor  to  collect,  and  such  indebtedness  may 
be  deducted  from  any  legacy  or  distributive  share  of  the  debtor.4 
In  the  case  cited  it  is  further  decided  that  the  right  of  set-off 
exists,  not  only  where  the  legatee  or  distributee  was  indebted  to 
the  deceased  before  the  latter's  death,  but  also  where,  after  the 
death,  he  has  contracted  a  liability  to  the  estate  or  to  the  admin- 
istrator; and  a  judgment  creditor  cannot,  by  asserting  a  judg- 
ment lien,  deprive  the  administrator  of  this  equitable  right  of 
set-off.4 

§  650.  Decisions  illustrating  the  rule  as  to  representatives 
and  guardians. —  While  the  rule  is,  where  one  brings  an  action 
in  a  representative  capacity  as  an  administrator  of  a  decedent  or 
as  a  trustee,  that  defendant  cannot  plead  by  way  of  counter- 
claim a  debt  due  defendant  from  plaintiff  individually,  yet  where 
the  action  is  by  an  administrator  against  several  defendants,  the 
latter  may  set  off  amounts  which  plaintiff,  as  administrator,  has 
been  ordered  to  pay  to  defendants  as  distributees;  and  it  is  im- 
material that  the  set-off  pleaded  by  the  defendants  is  made  up  of 
the  amounts  due  each  separately  under  the  order  of  distribution.5 
If  an  action  is  brought  on  the  bond  of  an'  executor  against  him 
and  his  sureties,  the  indebtedness  of  plaintiff  to  the  testator  in 
his  life-time  is  not  a  subject  of  set-off.6  An  administrator  cannot 
before  final  settlement  set  off  against  a  note  due  by  him  person- 
ally an  amount  due  by  plaintiff  to  him  as  administrator.7  If  a 
payment  has  been  made  by  a  defendant  in  his  capacity  as  exec- 
utor, he  cannot  set  up  such  payment  to  defeat  a  claim  brought 
by  plaintiff  against  him  as  an  individual.8  A  debt  due  to  a  de- 
fendant as  guardian  cannot  be  set  off  against  a  demand  due  by 

i  White  v.  Henley,  54  Mo.  502.  »Whaley  v.  Cape,  4  Mo.  233. 

tdward  v.  McGaugh,  8  Mo.  161.  G  State  to  use  v.  Modrell,  15  Mo.  421. 

3  Lee  v.  Lee,  21  Mo.  531.  7  Sanford  -«.  Foss,  58  App.  474. 

4  Hopkins  v.  Thompson,  73  App.  401.  8  Devore  v.  Devore,  138  Mo.  181. 


§§  G51-654.]  COUNTER-CLAIM   AND    SET-OFF.  oil 

him  individually.1  But  if  the  guardian  of  an  insane  person  brings 
an  action  on  a  note  payable  to  him  as  guardian,  a  defendant  may 
set  off  a  debt  to  him  from  the  ward.2 

§  651.  An  exception  to  the  rule. —  "While  an  administrator 
cannot,  to  the  detriment  of  the  creditors  of  the  estate  or  its  dis- 
tributees or  legatees,  discharge  a  debt  due  the  estate  by  a  can- 
cellation of  his  individual  liability  to  the  debtor  of  the  estate, 
such  debtor  is  nevertheless  entitled  to  a  credit  by  way  of  equi- 
table set-off,  where  by  its  allowance  justice  will  be  done  as  be- 
tween him  and  the  administrator,  without  affecting  the  rights  of 
any  one  except  those  of  the  administrator  as  such,  and  as  heir 
or  devisee.3 

§  652.  The  rule  in  case  of  trustees. —  A  chose  in  action  which 
is  assignable  cannot  be  set  off  by  one  to  whom  it  is  transferred, 
if  he  holds  it  only  as  trustee.4  A  demand  due  a  county  for  money 
borrowed  of  the  county  school  fund  may  be  set  off  against  a  de- 
mand due  by  the  county  for  services  rendered  in  behalf  of  the 
same  fund,  and  which  by  contract  are  to  be  paid  out  of  it,  since 
the  county  stands  in  the  position  of  trustee  in  respect  to  both 
demands.5 

§  653.  Mutuality — Joiut  against  individual  demand, — Where 
the  action  is  against  several  defendants  on  a  joint  demand  in  favor 
of  plaintiff  and  against  them  all,  one  of  the  defendants  may  set 
up  as  a  counter-claim  a  several  demand  existing  in  his  favor 
against  the  plaintiff.6  Where  a  set-off  is  thus  pleaded  by  one  of 
the  defendants,  the  plaintiff  may  in  his  reply  set  up  a  claim  by 
himself  against  the  defendant  so  pleading.7 

§  654.  Partnership  and  individual  debts. —  The  question  of 
set-off  where  individual  and  partnership  debts  are  involved  is 
discussed  in  Weiss  v.  Wahl,s  where  it  is  said  to  be  well  settled  that, 
in  an  action  against  a  member  of  a  firm  for  his  individual  debt, 
he  cannot  set  off  a  demand  due  the  firm ;  the  obvious  reason  of 
this  rule  being  that,  were  it  otherwise,  a  firm  might  be  made  to 

i  Gansner  v.  Franks,  75  Mo.  64.  of  appeals  in  Higgins  v.  Cartwright. 

^  Nickerson  v.  Gilliam,  29  Mo.  456.  25  App.  609.  that  agreements  to  allow 

3  State  ex  rel.  v.  Donegan,  94  Mo.  66.  individual  debts  to  be  set  off  against 

*  McDonald  v.  Harrison,  12  Mo.  447.  a  joint  claim  are  effectual  only  when 

5Smallwood  v.  Lafayette  County,  75  made  by  each  of  the  joint  creditors. 

Mo.  450.  7  Mortland  v.  Hoi  ton,  44  Mo.  58.    See 

6  Austin  v.  Feland,  8  Mo.  309;  Kent  also  a  case  under  §  650,  n.  5,  p.  340. 

v.  Rogers,  24  Mo.  306;  Mortland  v.  Hoi-        85  App.   408.     See  also  Ruddle  v. 

ton,  44  Mo.  58;  Stephens  v.  Schuch-  Horine,  34  App.  616;  Lamb  v.  Brolaski, 

mann,  32  App.  333;  Skinker  v.  Smith,  38  Mo.  51;  Weil  v.  Jones,  70  Mo.  560. 

48  App.  91.   It  is  also  said  by  the  court 


342  THE  ANSWER.  [§  G55. 

pay  all  the  private  debts  of  one  partner  to  the  injury  of  the 
other  partners  and  of  the  partnership  creditors.    But  there  is 
no  reason  why,  if  the  firm  of  which  plaintiff  is  a  member  is  in- 
debted to  the  defendant,  the  latter  should  not  be  allowed  to  set 
off  siuli  debt  of  the  firm  to  him.     Each  member  of  the  firm 
being  individually  liable  for  all  its  debts,  such  partnership  debt 
is  a  debt  of  the  plaintiff  to  the  defendant.     He  owes  the  whole 
of  it,  and  may  be  sued  separately  and  be  made  to  pay  the  whole 
of  it.     And  it  is  immaterial  though  the  other  partners  are  liable 
with  him  for  the  same  debt.     In  the  case  of  two  plaintiffs,  one 
of  whom  is  liable  for  the  set-off  and  the  other  not,  a  different 
case  is  presented  and  the  rule  does  not  apply.     So  one  who  is 
sued  for  a  debt  due  a  firm  cannot  set  off  a  debt  due  him  by  one 
of  the  partners.1     The  rule  that  where  one  member  of  a  firm  is 
sued  for  an  individual  debt,  he  cannot  set  off  a  debt  due  to  his 
firm,  does  not  apply  if  the  goods  furnished  by  the  firm,  and  for 
which  the  firm  debt  accrued,  were  charged  to  the  individual  part- 
ner and  not  to  plaintiff; 2  and  defendant  may  show  that  at  the  time 
of  the  creation  of  the  individual  debt  it  was  agreed  by  all  the 
partners  that  it  should  be  paid  by  applying  the  amount  on  de 
fondant's  debt  to  the  plaintiff  firm.3    Where  the  plaintiff  in  an 
action  upon  a  promissory  note  agreed  to  give  to  a  firm,  of  which, 
the  defendant  was  a  member,  commissions  for  the  sale  of  cattle, 
and  those  commissions  were  assigned  to  defendant  by  his  firm 
before  plaintiff  commenced  his  action  on  the  note,  then  such 
commissions  were,  for  the  purpose  of  a  set-off,  due  defendant  at 
the  date  of  the  institution  of  the  suit;  and  if  defendant's  co- 
partners allowed  him  the  commissions  individually,  and  it  was 
understood  by  all  parties  that  the  sale  was  made  by  the  defend- 
ant individually  on  his  own  account,  although  in  the  name  of 
the  firm,  this  wTas  in  effect  an  assignment  to  defendant  with  no- 
tice to  plaintiff.4     If  an  individual  defendant  in  his  answer  pleads 
a  set-off,  and  plaintiff  denies  the  set-off  in  the  replication,  plaint- 
iff may  show  that  the  dealings  out  of  which  defendant's  claim 
of  set-off  arose  were  with  a  partnership  of  which  defendant  was 
a  member,  and  not  with  defendant  individually.5 

§  655.  Same  —  In  case  of  a  surviving  partner. —  A  debt  due 
a  sole  surviving  partner  may  be  set  off  against  a  debt  due  from 

i  Payne  v.  O'Shea,  84  Mo.  129;  Nip-  *  Hall  v.  Allen,  80  Mo.  286. 

per  v.  Jones,  27  App.  538 ;  Wolff  v.  Mat-  5  Sedgwick  v.  Evans,  25  App.  383. 

thews,  39  App.  376.  See  also  Mortland  v.  Hoiton,  44  Mo. 

2  Lamb  v.  Brolaski,  38  Mo.  51.  58,  where  the  principle  is  applied. 

'  Nipper  v.  Jones,  27  App.  538. 


§§  656,  657.]  COUNTER-CLAIM   AND   SET-OFF.  343 

him  individually,  and  vice  versa.1  The  reason  of  this  is  clear. 
For  by  the  death  of  the  other  partner,  the  debt  became  a  sole 
and  separate  demand  belonging  to,  or  owing  by,  the  survivor. 

§'656.  As  between  partners. —  Where  plaintiff  and  defendant 
have  been  or  are  partners,  but  the  subject-matter  of  plaintiff's 
cause  of  action  is  independent  of  the  partnership,  defendant  can- 
not set  up  an  indebtedness  of  plaintiff  to  him  growing  out  of 
the  partnership,  until  after  there  has  been  a  settlement  of  the 
partnership  affairs.2  Moreover,  if  there  is  no  connection  be- 
tween the  debt  sued  on  and  the  partnership  transactions,  and 
there  is  no  allegation  of  any  fact  calling  for  the  interposition  of 
a  court  of  equity,  the  court  will  not  decree  a  dissolution  of  the 
partnership  and  a  settlement  of  the  partnership  accounts,  in 
order  to  allow  an  amount  due  the  defendant  to  be  set  off  against 
plaintiff's  demand.3 

§  657.  Mutuality  —  Surety  or  guarantor. —  As  a  surety  is 
entitled  to  take  advantage  of  all  the  defenses  and  all  the  secu- 
rities of  which  his  principal  might  avail  himself,  he  may  apply 
a  demand  in  favor  of  the  principal  alone  in  satisfaction  of  one 
against  the  principal  and  surety.4  And  the  right  to  offset  one 
judgment  with  another  in  such  cases  exists  at  common  law  inde- 
pendent of  the  statute.5  If  a  principal  and  a  surety  are  both 
sued  on  a  bond,  they  may  both  plead  as  a  counter-claim  a  judg- 
ment obtained  by  the  principal  against  the  obligee  on  debts  ex- 
isting at  the  time  the  bond  was  executed.6  But  if  a  set-off  is 
pleaded  by  the  principal,  the  plaintiff  may  in  reply  set  off  a  debt 
due  him  from  the  principal  additional  to  the  joint  debt  sued  on, 
and  such  pleading  does  not  constitute  a  departure.7  If  one  of 
two  sureties  has  paid  the  debt  of  the  principal  and  is  afterwards 
sued  by  a  co-surety  on  an  ordinary  debt,  he  may  plead  as  a 
counter-claim  the  liability  of  the  plaintiff  as  co-surety  to  con- 
tribute towards  the  payment  of  the  principal's  debt.8  "Where  a 
principal  had  a  fund  set  apart  for  payment  of  the  debt  for  which 
defendant  was  surety,  deposited  it  in  the  bank  for  that  purpose, 
and  the  bank  received  it  with  knowledge  of  the  purpose,  but 

1  Cow-den  v.  Elliot,  2  Mo.  60.  »Skinker  v.  Smith,  48  App.  91. 

-  Finney    v.    Turner,    10    Mo.    207;  6  Green  v.  Conrad,  114  Mo.  651. 

Wright  v.  Jacobs,  61  Mo.  19;  Jones  v.  7Mortland  v.  Holton,  44  Mo.  58.    See 

Shaw,  67  Mo.  657;  Willis  v.  Barron,  also  Sedgwick  v.  Evans,  25  App.  388, 

14:j  Mo.  45D.  where  the  principle  is  applied  to  a 

•'  Leabo  v.  Renshaw,  61  Mo.  292.  partnership  debt. 

*  Mortland  v.  Holton,  44  Mo.  58.  «  Moseley  v.  Fullerton,  59  App.  143. 


THE   AJJSWEB.  [§§  658,  659. 

afterwards  made  an  assignment,  and  a  claim  -was  asserted  by 
the  assignee  against  the  surely  as  the  debtor  of  the  bank,  the 
surety  ma  paying  the  debt  of  the  principal,  use  such  de- 

posit :  •  the  claim  of  the  bank  against  him.1 

£  658.  A  guarantor  of  another's  contract  cannot  be  subrogated 

to  the  of  such  other,  by  means  of  a  counter-claim  to  an 

o  brought  by  the  other  party  to  the  contract  against  the 

ntor.     While  the  guarantor  has  the  right  to  avail  himself 

defense  of  fraud  practiced  upon  his  principal  in  obtaining 

contract,  he  cannot,  in  an  action  against  him  by  the  other 

party,  set  up  a  counter-claim  for  loss  sustained  by  his  principal 

in  trying  to  perform  the  contract.2 

§  6-j().  Mutuality  in  mechanics'  lien  cases. —  Where  a  sub- 
contractor brings  an  action  to  enforce  a  mechanic's  lien,  the 
question  whether  he  may  be  met  by  a  counter-claim  depends  upon 
which  defendant  sets  up  the  counter-claim.  Such  an  action  is  of 
a  two-fold  character.  It  seeks  a  personal  judgment  against  the 
contractor,  who  is  personally  liable  for  the  debt;  and  it  seeks  to 
charge  the  land  of  the  property  owner  with  the  lien,  though  he 
is  not  personally  liable  for  the  debt.  There  can  be  no  question 
that  if  the  subcontractor  plaintiff  is  indebted  to  the  principal 
contractor,  one  of  the  defendants,  such  contractor  may  set  up 
the  indebtedness  as  a  counter-claim  or  set-off  as  fully  as  if  the  ac- 
tion was  solely  between  himself  and  the  plaintiff.  But  our  courts 
have  taken  the  position  that,  as  the  owner  is  not  sued,  strictly 
speaking,  on  the  contract,  and  as  no  personal  judgment  is  sought 
against  him,  he  cannot  plead  any  counter-claim  existing  in  favor 
of  his  co-defendant,  the  principal  contractor,  against  the  plaintiff; 
and  that,  therefore,  if  his  co-defendant,  the  contractor,  fails  to 
plead  such  counter-claim,  the  owner  is  powerless  to  avail  him- 
self of  it.3  There  can  be  no  question  that  under  a  strict  technical 
construction  of  the  rules  of  pleading  the  above  view  may  be  sus- 
tained.    But  it  is  plain  that  such  a  construction  may  work  great 

1  Rubey  v.  Watson,  22  App.  428.  not  avail  himself  of  a  counter-claim 

-Walser  v.  Wear,  141  Mo.  443.    This  which  the  principal  has  against  the 

decision  is  placed  upon  the  ground  other  party  to  the  original  contract. 

that   the  original  contract  between  The  distinction  appears  to  be  sorne- 

th  •  parties  was  a  different  and  hide-  what  technical. 

pendent   contract  from  that  of  the  3Such  is  the  position  taken  in  the 

guaranty;  and  while  it  is  admitted  following  cases:  Wescott  v.  Bridwell, 

that  the  guarantor  has  the  right  to  40  Mo.  14G;  Uthoff  v.  Gerhard,  42  App. 

avail  himself  of  all  defenses  which  256. 

his  principal  may  have  had,  he  can- 


§  660.]  counter-claim:  and  set-off.  345 

hardship  upon  the  owner,  since  he  may  be  compelled  by  a  pro- 
ceeding to  enforce  a  mechanic's  lien  to  pay  for  his  improvements 
a  sum  in  excess  of  that  agreed  upon  between  himself  and  the 
original  contractor.  I  think  it  may  be  fairly  suggested  that,  as 
equity  would  in  such  a  case  relieve  the  owner  from  this  hardship, 
and  as  the  Code  expressly  provides  that  equitable  defenses  may 
be  pleaded  as  well  as  legal  ones,  and,  furthermore,  as  one  object 
of  the  Code  is  to  prevent  circuity  of  action,  it  would  not  be  un- 
duly stretching  the  rules  of  pleading  to  allow  an  owner  in  all 
such  cases  to  avail  himself  of  every  defense  which  the  contractor 
may  have,  to  at  least  as  great  an  extent  as  a  surety  is  allowed  to 
avail  himself  of  the  defenses  belonging  to  his  principal.1  I  use 
the  term  "  defense  "  advisedly;  for  it  is  clear  that  the  owner  can- 
not avail  himself  of  the  contractor's  counter-claim  as  such.  He 
can  in  no  event  recover  a  balance.  He  can  use  it  only  to  reduce, 
or  entirely  defeat,  the  subcontractor's  demand.  In  McAdow  v. 
J2oss,2  where  a  subcontractor  brought  suit  to  enforce  his  lien,  the 
owner  set  up  as  a  counter-claim  that  plaintiff  had  guaranteed  that 
the  contractor  should  build  the  house  in  a  workmanlike  manner 
and  in  a  certain  time,  and  that  he  had  failed  in  both  respects, 
and  it  was  held  that  this  counter-claim  would  lie.  The  decision, 
it  is  true,  was  based  upon  the  ground  that  the  guaranty  in  ques- 
tion arose  out  of  the  transaction  set  forth  in  the  petition,  or  was 
at  all  events  connected  with  the  subject  of  the  action;  but  it 
logically  follows  from  the  decision  that  the  point  that  plaintiff 
is  not  seeking  a  personal  judgment  against  the  owner  of  the  prop- 
erty is  too  technical  to  find  any  place  under  the  code  practice. 
For  it  was  as  true  in  the  one  case  as  in  the  other  that  the  sub- 
contractor could  have  no  personal  judgment  against  the  owner.3 
§  680.  The  terms  used  in  section  605. —  Whatever  may  be  the 
character  of  the  action,  the  defendant  may  plead  as  a  counter- 
claim any  cause  of  action  arising  out  of  the  contract  or  transaction 
set  forth  in  the  petition  as  the  foundation  of  the  plaintiff's  claim, 
or  connected  with  the  subject  of  the  action.  And  there  is  one  class 
of  cases,  those  arising  on  contract,  in  which  he  may  plead  as  a  coun- 

1  See  §  657,  ante.  of  attorney's  fees  paid  by  him  in  de- 

2  53  Mo.  199.  This  case  contains  a  fending  a  suit  brought  by  a  subcon- 
very  full  discussion  of  the  law  of  coun-  tractor  against  the  plaintiff  as  con- 
ter-claim.  tractor  and  defendant  as  owner,  the 

3  In  a  very  recent  case  the  supreme  contractor  having  failed  to  employ 
court  decided  that,  where  the  original  counsel  or  to  make  defense  in  that 
contractor  brings  alien  suit,  the  de-  suit.  Dempsey  v.  Schawacker,  1 10  Mo. 
fendant  owner  may  set  off  the  amount  680. 


T11K    ANSWER.  [§§  661,  662. 

ter-olaim  any  other  oanse  of  action  arising  also  on  contract  and 
existing  at  the  commencement  of  the  action.1  It  is  important, 
therefore,  to  define  these  terms.  What  is  an  action  arising  on 
contrast?  What  is  a  transaction  within  the  purview  of  the  stat- 
ute? When  is  a  cause  of  action  such  that  it  may  be  said  to  be 
connected  with  the  subject  of  plaintiff's  action?  These  questions 
will  be  considered  in  their  order.2 

6  661.  What  is  an  action  arising  on  contract. —  In  determin- 
ing what  may  be  considered  an  action  arising  on  contract,  a 
rather  liberal  view  has  been  taken  by  our  courts.3  Thus  it 
has  been  held  that  an  action  on  an  appeal  bond  is  one  aris- 
ing on  contract,  though  the  judgment  appealed  from  was  ren- 
dered for  a  tort,  since  the  tort  became  merged  in  the  judgment.4 
"While  it  is  true  that,  in  the  absence  of  an  express  promise  to  pay 
for  improvements  made  by  the  defendant,  the  defendant  cannot 
recover  for  such  improvements,  yet  in  case  there  is  an  express 
promise  it  is  the  proper  subject  of  counter-claim.5  Where  an  ac- 
tion is  brought  against  a  bank  to  collect  an  amount  which  its 
cashier  had  on  deposit  with  the  bank,  and  which  has  been  as- 
signed to  plaintiff,  the  defendant  bank  may  set  up  by  way  of 
counter-claim  a  cause  of  action  against  the  cashier  for  wrongfully 
permitting  an  overdraft.  The  liability  of  the  cashier  to  the  bank 
was  a  breach  of  duty  originating  in  its  contract  of  employment, 
the  faithful  performance  of  which  duty  he  had  assumed  by  con- 
tract.6 

§662.  Same — The  test. —  The  test  by  which  to  determine 
whether  a  particular  demand  arises  on  contract  within  the  mean- 
ing of  the  above  section  is  this:  If  the  demand  could  have  been 
redressed  at  common  law  by  any  of  the  forms  of  action  which 
might  be  resorted  to  in  order  to  recover  damages  for  breaches  of 
contract,  then  it  is  the  proper  subject  of  a  counter-claim ;  other- 
wise not.  If,  for  instance,  defendant  could  maintain  at  common 
law  against  the  plaintiff,  on  a  cause  of  action  set  up  in  the  coun- 
ter-claim, an  action  of  covenant,  debt  or  assumjwit,  then  the  cause 
of  action  is  one  growing  out  of  contract  within  the  meaning  of 
the  statute.6    All  independent  express  contracts,  whether  liqui- 

i  Rev.  Stat  1899,  sec.  605.  3  Barnes  v.  McMullins,  78  Mo.  260. 

''For  an   interesting  discussion  of        4 Green  v.  Conrad,  114  Mo.  651. 
tliese  questions  I  refer  the  reader  to        ?  Wilkerson  v.  Farnham,  82  Mo.  672. 
the  work  of  .Air.  Pomeroy  on  Remedies        6St.  Louis  School  Board  v.  Broarl- 

and  Remedial  Rights,  sec.  452  et  seq.  way  Sav.  Bank,  12  App.  104, 84  Mo.  56. 
and  sec.  708  et  seq. 


§§  663,  664:.~\  COUNTER-CLAIM   AND    SET-OFF.  317 

dated  or  unliquidated,  are  the  subjects  of  counter-claim  under  this 
provision.1  And  it  is  immaterial  whether  the  counter-claim  pre- 
sents a  legal  or  an  equitable  cross-suit.2 

§  663.  Decisions  illustrating  the  rule  as  to  contracts. —  If 
the  suit  is  founded  upon  a  cause  of  action  connected  in  any  man- 
ner with  a  contract,  a  counter-claim  arising  out  of  any  other  con- 
tract between  the  same  parties  may  be  set  up.3  It  is  not  necessary 
in  that  case  that  the  counter-claim  should  grow  out  of  the  same 
transaction.4  .If  an  agent  sues  his  principal  for  the  value  of  his 
services,  it  is  competent  for  the  defendant  to  set  off  moneys  col- 
lected for  him  by  the  plaintiff  while  in  his  employment,  and 
which  the  plaintiff  has  not  paid  over.5  But  a  mere  obligation  to 
lend  money  to  an  insurance  company  cannot  be  set  off  by  the  com- 
pany against  a  debt  due  the  obligor.6  It  has  been  held  that  the 
value  of  improvements  erected  by  a  tenant  which  he  was  enti- 
tled to  remove  at  the  end  of  his  term  cannot  be  set  off  against 
an  amount  due  for  rent.7  But  this  decision  was  based  upon  the 
ground  that  the  right  of  the  tenant  to  remove  his  buildings  was 
conditioned  upon  his  having  paid  all  the  rents  and  complied  with 
all  the  covenants  of  the  lease,  and  not  upon  the  ground  that  the 
counter-claim  was  not  founded  upon  a  contract.  An  answer 
which  alleges  the  failure  of  plaintiff  to  present  to  the  drawer  a 
draft  delivered  by  defendant  to  the  plaintiff  for  collection  states 
a  cause  of  action  arising  on  contract.8 

§  664.  What  is  a  transaction  within  the  meaning  of  the 
statute. —  The  term  "  transaction,"  as  used  in  the  Code,  cannot 
be  restricted  to  the  simple  statement  of  the  wrong  complained 
of  by  plaintiff.  It  includes  all  the  facts  and  circumstances  out 
of  which  the  injury  complained  of  by  plaintiff  arose.  If  these 
facts  and  circumstances  also  furnish  to  the  defendant  a  ground 
of  complaint  or  a  cause  of  action  against  the  plaintiff,  defendant 
will  be  entitled  to  present  such  cause  of  action  or  ground  of  com- 
plaint as  a  counter-claim.     But  he  must  show  by  proper  aver- 

1  Barnes  v.  McMullins,  78  Mo.  2G0;  decision  might  also  be  made  to  rest 
Kamerick  v.  Castleman,  23  App.  481 ;  upon  the  ground  that  the  counter- 
Heman  v.  McNamara,  77  App.  1.  claim  grew  out  of  the  transaction  on 

2  Heman  v.  McNamara,  77  App.  1.  which  plaintiff's  claim  was  founded. 

3  Empire  Transportation  Co.  v.  Bog-  6  Sumrall  v.  Sun  Mut.  Ins.  Co.,  40 
giano,  52  Mo.  294.  Mo.  27.     It  will  be  observed  that  this 

4  McAdow  v.  Ross,  53  Mo.  199;  Ashby  decision  refers  only  to  a  set-off. 

v.  Shaw,  82  Mo.  76.  i  Clemens  v.  Murphy,  40  Mo.  121. 

5  Paul  v.  Carroll,  12  Mo.  437.     This        8  Dyas  v.  Hanson,  14  App.  3G3. 


THE   ANSWER.  [§  G65. 

ments  thai  his  claim  is  a  part  of  the  transaction  which  is  the 
foundation  of  plaintiff's  claim.1  And  it  is  held  in  the  case  cited 
that  if  the  transaction  originated  in  contract,  though  the  plaintiff's 

action  is  in  form  for  a  tort,  yet  defendant  may  plead  a  breach  of 
the  contract  by  way  of  counter-claim.2  If,  in  an  action  to  en- 
foroe  a  mechanic's  lien,  the  petition  is  based  upon  a  quantum 
meruit  for  labor  performed  and  materials  furnished,  the  defend- 
ant owner  of  the  property  against  which  plaintiff  seeks  to  enforce 
the  lien  may  set  off  the  amount  of  the  attorney's  fees  paid  by 
him  in  defending  an  action  brought  by  a  subcontractor  against 
the  plaintiff  as  contractor  and  against  the  defendant  as  owner, 
the  plaintiff  having  failed  to  employ  counsel  or  to  make  any  de- 
fense to  that  action.3  "Where  the  action  is  upon  a  written  obliga- 
tion for  the  payment  of  money,  defendant  ma}7  plead  by  way  of 
counter-claim,  or  to  establish  a  failure  of  consideration  in  whole 
or  in  part,  any  matter  arising  out  of  the  contract  or  transaction, 
and  which  would  furnish  an  independent  ground  of  action  ex  de- 
licto against  the  plaintiff  for  damages.4 

§  G65.  Connected  with  the  subject  of  the  action. —  Where  an 
action  is  brought  by  a  subcontractor  to  enforce  a  mechanic's 
lien,  the  owner  may  set  up  as  a  counter-claim  that  plaintiff  had 
guaranteed  that  the  original  contractor  should  build  the  house 
in  a  workmanlike  manner  and  within  a  certain  time,  and  that  he 
had  failed  in  both  respects,  because  such  a  counter-claim  is, 
within  the  meaning  of  the  first  subdivision  of  section  G05,5  con- 
nected with  the  subject  of  the  action.6  Where  a  carrier  sues  a 
shipper  for  the  freight  due  for  goods  carried,  defendant  may  re- 
cover, under  a  plea  of  counter-claim,  damages  arising  out  of  a 
breach  of  the  contract  of  carriage.7  Plaintiff  sued  for  damages 
arising  from  the  filling  up  of  a  ditch,  whereby  the  surface  water 
was  dammed  up  and  caused  to  overflow  plaintiff's  crops.  De- 
fendants set  up  as  a  counter-claim  the  fact  that  plaintiff  had  cut 
openings  in  another  ditch,  into  which  the  ditch  in  question  dis- 
charged its  water,  through  which  openings  the  water  was  pre- 
cipitated on  to  the  land  of  defendants,  injuring  the  land  and  the 
crops.  It  was  held  that  this  counter-claim  was  properly  stricken 
out  as  not  coming  within  the  above  provision  of  the  statute.8 

1  Ritchie  v.  Hay  ward,  71  Mo.  560.  4  Brockhaus  v.  Schilling,  52  App.  73. 

-  This  is  more  fully  considered  in        5  Rev.  Stat.  1899. 

post.  6  McAdow  v.  Ross,  53  Mo.  199. 

3Dempsey  v.  Schawacker,  140  Mo.        7  Conrad  v.  De  Montcourt,  138  Mo. 

See  also  McAdow  v.  Ross,  53  Mo.  311. 
109.  8  Vaughan  v.  Rupple,  69  App.  583. 


§§   G6G-G68.]  COUNTER-CLAIM    AND    SET-OFF.  349 

§  6G6.  Damages  arising  from  a  tort. —  In  an  action  based  on 
contract,  defendant  cannot  plead  as  a  counter-claim  damages 
arising  out  of  a  tort,1  unless  the  tort  grows  out  of  the  transaction 
which  is  the  basis  of  the  action.2  Thus,  where  an  action  was  on 
a  promissory  note,  defendant  cannot  plead  that  plaintiff  had  sold 
certain  corn  for  him,  but  that  the  corn  had  been  sold  at  less  than 
its  market  value,  and  that  defendant  was  entitled  to  the  difference 
between  the  price  obtained  and  such  market  value.1  So,  too,  in 
an  action  on  a  promissory  note,  a  cause  of  action  growing  out  of 
a  tort  cannot  be  set  up  as  a  counter-claim. s  In  that  case  the  ac- 
tion was  upon  a  promissory  note  given  for  the  rental  of  certain 
premises.  Defendant  set  up  as  a  counter-claim  that  he  had  pur- 
chased from  plaintiff  another  piece  of  ground  on  which  was  a 
stable  which  passed  by  the  purchase  to  defendant,  and  that  said 
stable  was  carried  away  and  defendant  was  deprived  of  it.  It 
was  held  that  this  was  an  action  for  a  tort,  that  it  had  nothing 
to  do  with  the  note  sued  on,  and  that,  therefore,  it  did  not  con- 
stitute a  proper  counter-claim  in  an  action  on  the  note,  which 
was  given  for  rental  of  another  piece  of  property.4 

§  667.  Effect  of  waiving  the  tort. —  The  practice  under  the 
common  law,  which  permitted  a  plaintiff  who  had  been  damaged 
by  the  wrongful  act  of  another  to  bring  an  action  in  tort,  or  to 
waive  the  tort  and  sue  on  an  implied  promise,  prevails  under  the 
Code.5  This  rule  of  practice  has  an  important  bearing  upon  the 
question  of  counter-claim.  The  rule  is  that  in  all  that  class  of 
cases  in  which  a  tort  has  been  suffered,  and  the  law  permits  the 
sufferer  to  waive  the  tort  and  sue  upon  an  implied  contract,  if 
defendant  indicates  in  his  plea  that  he  is  proceeding  on  the  im- 
plied assumpsit,  his  counter-claim  will  be  sustained,  under  the 
second  subdivision  of  section  G05,6  as  an  action  arising  on  con- 
tract; and  he  brings  his  cross-demand  within  the  meaning  and 
terms  of  the  statute  by  showing  that  he  has  in  fact  elected  to 
sue  in  assumpsit? 

%  668.  Where  plaintiffelectstosue  in  tort. — In  the  above  cited 
case  plaintiff's  cause  of  action  was  founded  on  contract.     A  more 

JGantt  v.  Duffy,  71  App.  91.  other  and  entirely  distinct  transaction, 

2  Conrad  v.  De  Montcourt,  138  Mo.  is  held  in  Pratt  v.  Menkens,  18  Mo. 

311.  158. 

s  Wilkerson  v.  Farnham,  82  Mo.  672.  s  See  §  265,  ante. 

4  That,  in  an  action  on  a  promis-  6  Rev.  Stat.  1899. 

sory  note,  defendant  cannot  plead  as  7  Barnes  v.  McMullins,  78  Mo.  260; 

a   set-off   damages  arising   from  the  Green  v.  Conrad,  114  Mo.  651,  672. 
fraudulent  practices  of  plaintiff  in  an- 


350  THE    ANSWER.  [§  668. 

difficult  question  arises  where  the  plaintiff  elects  to  sue  in  tort. 
The  rule  undoubtedly  is  that  where  the  cause  of  action  is  founded 
on  a  wrong,  or,  as  it  is  usually  expressed,  is  an  action  ex  delicto, 
defendant  will  not  ordinarily  be  allowed,  under  the  second  sub- 
division of  section  605,1  to  set  up  a  counter-claim  predicated  on  a 
contract  between  the  parties.    But  if  the  tort  is  so  connected  with 
and  dependent  upon  the  existence  of  the  contract  as  to  connect 
the  counter-claim  with  the  subject  of  the  action,  then  it  is  allow- 
able.    If  the  plaintiff  elects  to  sue  ex  delicto,  but  the  cause  of  ac- 
t  ton  springs  out  of  a  contract  which  is  pleaded  as  an  inducement, 
defendant  may  set  up  a  counter-claim  growing  out  of  plaintiff's 
breach  of  that  contract.     Thus,  in  Ritchie  v.  Hay  ward?  plaintiff 
sued  in  trover  for  the  conversion  of  certain  sacks.     Defendant 
set  up  as  a  counter-claim  damages  growing  out  of  a  breach  of 
contract  for  the  sale  of  potatoes,  which  were  to  be  delivered  in 
the  sacks,  and  which  were  to  be  of  a  certain  quality,  alleging 
that  the  sacks  of  potatoes  were  delivered,  but  that  they  were  of 
an  inferior  quality,  and  that  these  were  the  sacks  alleged  by 
plaintiff  to  have  been  converted.     The  supreme  court  held  that 
the  counter-claim  would  lie,  quoting  from  Pomeroy  on  Kemedies 
and  Remedial  Rights  the  following  as  expressing  the  rule :  "  "When- 
ever the  facts  are  such  that  an  election  is  given  to  the  plaintiff 
to  sue  in  form  either  for  a  tort  or  on  contract,  and  if  he  sues  on 
contract  the  defendant  may  counter-claim  damages  for  the  breach 
of  that  contract,  the   same   counter-claim   may  be   interposed 
when  the  suit  is  in  form  for  the  tort;  the  facts  being  exactly  the 
same  in  both  phases  of  the  action,  a  counter-claim  would  clearly 
arise  out  of  the  real  transaction  which  was  the  foundation  of  the 
plaintiff's  demand." 3     The  rule  was  applied  in  Kamerick  v.  Castle- 
man,4  which  was  an  action  for  the  wrongful  entry  on  plaintiff's 
land  and  the  appropriation  of  his  crops.     The  petition  alleged 
that  plaintiff  rented  from  defendant  certain  premises  on  which, 
he  had  raised  a  crop  of  corn;  that  a  constable  had  wrongfully 
and  forcibly  entered  upon  the  premises  and  ejected  plaintiff  there- 
from, by  reason  of  which  plaintiff  lost  the  crop,  and  that  de- 
fendant had  incited  and  instigated  the  constable  to  commit  the 
wrong  complained  of.   Defendant  set  up  as  a  counter-claim  dam- 
ages arising  from  a  breach  of  the  contract  of  rental  set  forth  in 
the  petition,  and  it  was  held  that  the  counter-claim  was  properly 
pleaded.     The  court,  speaking  through  Phillips,  P.  J.,  says  that 

1  Rev.  Stat.  1899.  271  Mo.  560.  3Id.,  p.  563.  *33  App.  481. 


§§  669,  670.]  COUNTER-CLAIM   AND   SET-OFF.  351 

for  the  wrongful  invasion  of  plaintiff's  possession  by  Castleman, 
plaintiff  had  his  election  to  sue  on  the  contract  or  for  the  tort.  By 
electing  to  pursue  the  latter  remedy,  he  could  not  cut  off  the  de- 
fendant's right  to  a  counter-claim  for  damages  growing  out  of 
the  breach  of  the  contract  of  rental.1 

§  669.  So  it  may  be  laid  down  as  a  general  rule  that,  whether 
plaintiff's  action  is  ex  contractu  or  ex  delicto,  if  the  foundation  of 
the  action  is  a  contract,  defendant  may  set  up  as  a  counter-claim 
damages  arising  out  of  a  breach  of  the  contract.2  In  a  case  where 
plaintiff  sued  on  an  account,  defendant  set  up  as  a  counter-claim 
a  demand  for  pasturage.  It  appeared  that  there  was  a  contract 
between  the  parties  for  pasturage,  and  that  the  counter-claim 
was  based  on  the  fact  that  plaintiff  had  turned  into  the  pasture 
a  greater  number  of  cattle  than  he  was  entitled  to  graze  under 
the  contract.  It  was  held  that,  while  defendant  could  have  re- 
covered in  trespass  for  such  excessive  pasturage,  he  had  the  right 
to  waive  the  trespass  and  sue  on  an  implied  contract,  and  there- 
fore the  counter-claim  was  properly  based  on  contract.3  If  a 
cause  of  action  arises  from  a  breach  of  trust  under  such  circum- 
stances that  the  party  injured  might  waive  the  tort  and  sue  in 
assumpsit,  it  is  a  proper  subject  of  counter-claim.4  "Where  the 
assignee  of  a  bankrupt,  who  is  entitled  to  recover  goods  which 
have  been  delivered  in  fraud  of  the  act  to  one  of  the  creditors, 
brings  assumpsit  against  such  creditor  instead  of  trover,  he 
thereby  affirms  the  contract,  and  the  creditor  may  set  off  his 
debt.5 

§  670.  Action  for  a  penalty. —  In  Woodward  v.  Conder*  which 
was  a  case  where  plaintiff  sued  for  treble  damages  under  sec- 
tion 45T2,7  for  the  carrying  away  of  hay  grown  on  plaintiff's 
premises,  defendant  pleaded  a  counter-claim  which  was  of  such 
a  nature  that  it  might  well  be  held  to  have  grown  out  of  the 
transaction  set  forth  as  the  foundation  of  plaintiff's  claim.  But 
the  court  of  appeals  declares  that,  regardless  of  the  nature  of 
the  claim,  no  counter-claim  at  all  would  lie,  because  an  action  for 
a  statutory  penalty  is  ^wa^'-criminal  in  its  nature,  and  the  stat- 
ute in  regard  to  counter-claims  does  not  apply. 

1 23  App.,  p.  489.  4  Banking  House  v.  Harvey,  12  App. 

2  Empire  Transportation  Co.  v.  Bog-    588. 

giano,  52  Mo.  294.  5  Benoist  v.  Darby,  12  Mo.  196. 

3  McCuin  v.  Frazier,  38  App.  63.  6  33  App.  147. 

7  Rev.  Stat.  1899. 


THE   ANSWER.  [§§671,672. 

§  671.  The  debt  or  demand  must  be  in  existence  at  the  com- 
mencement of  tlie  action.— Section  605 l  provides  that,  where 
a  cause  of  art  ion  arising  on  contract  is  pleaded  as  a  counter-claim 
to  an  action  on  contract,  the  cause  of  action  set  up  in  the  counter- 
claim must  have  existed  at  the  commencement  of  the  action 
against  the  defendant.  And  this  is  the  rule  in  all  cases,  whether 
the  counter-claim  is  an  equitable  or  a  legal  one.2  Therefore 
whore  the  defendant,  after  the  filing  of  the  petition,  but  before 
service  of  the  writ  upon  him,  purchased  a  note  of  plaintiff  for 
the  purpose  of  using  it  as  an  offset,  the  counter-claim  was  prop- 
erly stricken  out.3  And  where  plaintiff  sued  by  attachment,  and 
idant  pleaded  as  a  counter-claim  that  plaintiff  had  the  use 
of  certain  mules  which  the  sheriff  took  under  the  attachment 
writ  and  delivered  to  plaintiff,  even  if  such  counter-claim  could 
be  held  proper  under  any  circumstances,  it  could  not  be  allowed 
in  that  action,  since  it  was  not  a  claim  existing  at  the  commence- 
ment of  the  attachment  suit.4 

§  672.  How  the  right  is  affected  by  an  assignment. —  "While 
it  does  not  come  strictly  within  the  province  of  a  work  on  plead- 
ing to  consider  how  far  the  right  of  set-off  or  counter-claim  can 
be  destroyed  or  affected  by  the  fact  that  the  claim  has  been  as- 
signed by  its  original  owner,  it  may  be  stated  in  general  terms 
that  where  a  debt  or  judgment  is  assigned,  as  to  which  a  right 
of  set-off  had  attached  at  the  time  of  the  assignment,  the  assignee 
takes  it  cum  onere,  with  the  right  of  set-off  still  clinging  to  it.5 
The  appointment  of  a  receiver  does  not  affect  the  rights  of  the 
original  parties  in  respect  to  set-offs  or  counter-claims  existing 
at  the  time  of  the  appointment.6  And  the  right  of  a  judgment 
debtor  to  offset  the  whole  of  a  judgment  obtained  by  him  against 
the  judgment  creditor  is  not  affected  by  an  equitable  assignment 
of  a  part  of  the  latter  judgment  to  a  third  person.7  The  right 
of  set-off  does  not  include  demands  subsisting  against  interme- 
diate assignees,  through  whose  hands  the  demand  may  have 
passed,  unless  there  is  an  agreement  to  that  effect,  supported  by 
a  valid  consideration.8    A  counter-claim  may  be  set  up  against 

JRev.  Stat.  1899.  disallowed  on  broader  grounds.    See 

2  Reppy  v.  Reppy,  46  Mo.  571.    See    Hembrock  v.  Stark,  53  Mo.  588. 

881,  post.  s  Skinker  v.  Smith.  48  App.  91. 

3  Todd  v.  Crutzinger,  30  App.  145.  6  Cox  v.  Volkert,  86  Mo.  505. 

4  Meincke  v.  Bracksieck,  14  App.  315.  7  Crecelius  v.  Bierman,  72  App  355. 
The  counter-claim  might  have  been  8  Frowein  v.  Calvird,  75  App.  567. 


§§  673,  674.]  COUNTER-CLAIM    AND    SET-OFF.  353 

an  assignee  for  the  benefit  of  creditors  in  the  circuit  court  after 
appeal,  though  it  was  not  set  up  before  the  assignee.1 

§  673.  Pleading  in  case  of  set-off — A  set-off  must  be  pleaded 
substantially  as  though  it  were  a  petition  in  a  cross-action.2 
"Where  a  mere  set-off  is  pleaded,  there  need  be  no  prayer  for  an 
affirmative  judgment  in  defendant's  favor.3  As  to  the  set-off, 
defendant  occupies  the  position  of  a  plaintiff,  and  the  replication 
of  plaintiff  is  an  answer  to  the  defendant's  set-off.4  Where  the 
plea  of  set-off  is  accompanied  by  a  deposit  in  court  as  a  tender 
of  the  amount  of  the  difference  between  plaintiff's  demand  and 
the  set-off  claimed  by  defendant,  this  is  a  conclusive  admission 
of  the  justice  of  plaintiff's  demand,  and  will  entitle  the  plaintiff 
to  recover  the  amount  of  his  demand,  less  such  sum  as  is  found 
due  the  defendant  on  his  set-off.5  A  set-off  being  in  the  nature 
of  a  cross-action,  it  should  be  pleaded  with  all  the  particularity 
of  a  petition,  and  should  contain  in  substance  the  same  allega- 
tions as  would  be  necessary  to  sustain  an  original  cause  of  action.6 

§  674.  In  case  of  counter-claim.—  A  counter-claim  must  be 
so  pleaded  as  to  show  by  proper  averments  that  it  arises  on  con- 
tract, or  that  it  is  a  part  of  the  same  transaction  which  is  made 
the  foundation  of  plaintiff's  claim.7  And  if  the  answer  does  not 
set  out  the  transactions  or  contract  out  of  which  a  certain  item 
of  the  counter-claim  arose,  it  is  not  sufficient  to  warrant  the  in- 
troduction of  evidence  in  its  support.8  The  matter  constituting 
the  counter-claim  should  not  be  blended  with  the  matter  intended 
simply  as  a  defense,  but  should  be  separately  stated 9  with  all 
the  distinctness  that  would  be  required  if  the  defendant  were 
suing  the  plaintiff  in  an  independent  proceeding;  and  the  objec- 
tion that  defendant  has  improperly  blended  statements  touching 
the  defense  and  those  relating  to  a  counter-claim  may  be  raised 
by  motion  to  strike  out.10 

1  St.  Louis  School  Board  v.  Broad-        3  Wagner  v.  Dette,  2  App.  254. 
way  Sav.  Bank.  12  App.  104,  84  Mo.  50.        4  Winton  State  Bank  v.  Harris,  54 

There  are  a  number  of  decisions  in  App.  156. 

th  is  state  involving  the  question  of  the  5  Williamson  v.  Baley,  78  Ma  636. 

right  of  set-off  where  there  has  been  b  Brady  v.  Hill,  1  Mo.  315. 

an  assignment  for  the  benefit  of  cred-  '  Ritchie  v.  Hayward,  71  Mo.  560. 

itors;  but  I  do  not  deem  that  subject  8  Fallon  v.  Stahl,  17  App.  475. 

within  the  legitimate  scope  of  this  !)  Rev.  Stat.  1899,  sec.  605. 

work-  i«  Kinney  v.  Miller,  25  Mo.  576.    It 

2  Brady  v.  Hill,  1  Mo.  315.    See  also  seems  also  that  this  objection  may  be 
§  640,  ante.  raised  by  demurrer. 

Mo.  Code  Pi 23 


354  the  axswk;;.  [§§  675-679. 

§  r.7r>.  The  same  rules  in  regard  to  pleading  a  proviso  or  ex- 
ception, as  to  negativing  affirmative  matter,  and  as  to  anticipat- 
ing defenses,  apply  to  a  counter-claim  which  have  heretofore 
been  Laid  down  as  applicable  to  petitions.1  In  an  action  to  re- 
cover  on  a  quantum  meruit  the  reasonable  price  for  constructing 
a  building,  defendant  set  up  a  special  contract  between  him  and 
plaintiff  whereby  the  latter  was,  in  case  of  delay  in  completing 
the  building,  to  forfeit  a  certain  sum  daily.  It  appearing  that 
this  agreement  of  plaintiff  was  coupled  with  certain  conditions, 
it  was  held  that  it  devolved  on  the  defendant  to  note  those  con- 
ditions in  his  answer,  and  to  aver  and  prove  facts  consistent 
therewith  which  would  tend  to  show  plaintiff's  liability;  and  if 
he  failed  to  do  so,  he  was  not  entitled  to  recover  even  nominal 
damages.2 

§  676.  Pleading  set-off  in  reply. —  Where  one  of  several  de- 
fendants pleads  as  a  set-off  a  debt  due  from  the  plaintiff  to  him 
individually,  plaintiff  may  in  his  reply  set  up  a  debt  additional 
to  the  one  sued  on  by  him,  which  is  due  from  the  individual  de- 
fendant to  himself.3  But  where  there  is  a  single  defendant,  and 
he  interposes  a  set-off  to  plaintiff's  demand,  the  plaintiff  cannot 
set  up  in  reply  another  demand  distinct  from  that  upon  which 
his  action  is  based,  and  which  he  might  have  included  in  his 
petition.4  In  no  case  can  plaintiff  recover  a  judgment  on  the 
set-off  pleaded  in  his  reply;  he  can  use  it  only  to  reduce  the 
amount  of  the  defendant's  set-off.3 

§  677.  Effect  of  pleading  a  set-off  or  counter-claim. —  The 
effect  of  pleading  a  set-off  is  to  admit  the  justice  of  plaintiff's 
demand;  but  such  admission  is  not  a  consequence  of  pleading  a 
counter-claim.5 

§  678.  Defeating  a  set-off  winch  has  once  accrued. — An  as- 
signment of  a  non-negotiable  note  cannot  be  canceled  so  as  to 
defeat  set-offs  which  the  maker  has  against  the  assignee.6  And 
the  right  of  a  judgment  debtor  to  set  off  a  judgment  obtained  by 
him  against  the  judgment  creditor  is  not  affected  by  an  equitable 
assignment  of  a  part  of  the  latter  judgment  to  a  third  person.7 

§  Vu\).  The  rules  relating  to  set-off  and  counter-claim  ap- 
plied in  specific  cases. —  Where  defendant  was  induced  by  fraud- 

i  See  ch.  XIIL  v.  M.,  K.  &  T.  R.  Co.,  80  App.  414.  See 

2  Connelly  v.  Priest,  72  App.  673.  also  Hay  v.  Short,  49  Mo.  139. 

a  Mortlan  I  v.  Holton,  44  Mo.  58.  6  Billings  v.  Atchison,  15  Mo.  68. 

4  Dawson  v.  Dillon,  26  Mo.  395.  7  Crecelius  v.  Bierman,  72  App.  355. 

5  Jones  v.  Moore,  42  Mo.  413;  Zerbe 


§  680.]  COUNTER-CLAIM   AND    SET-OFF.  355 

ulent  misrepresentations  of  the  plaintiff  to  purchase  the  article 
for  the  price  of  which  the  action  was  brought,  he  may  set  up  by 
way  of  counter-claim  any  damage  he  has  suffered  by  reason  of  the 
misrepresentations,  since  a  defendant  may  show  by  way  of  coun- 
ter-claim or  recoupment,  or  to  establish  a  failure  of  consideration 
in  whole  or  in  part,  any  matter  arising  out  of  the  contract  or  trans- 
action which  would  furnish  an  independent  ground  of  action  ex 
delicto  against  the  plaintiff  for  damages.  And  defendant  will  be 
entitled  to  recoup  by  way  of  counter-claim  the  difference  between 
the  value  of  the  property  if  the  representations  of  plaintiff  had  been 
true,  and  its  value  as  it  actually  turned  out  to  be.1  Of  course,  the 
vendee  might  bring  a  separate  action  for  the  deceit.2  So,  too,  de- 
fendant may  show  by  way  of  counter-claim  damages  sustained  by 
him  by  reason  of  a  breach  of  warranty  in  the  sale.3  And  ordi- 
narily where  a  breach  of  warranty  is  shown,  the  cross-claims  aris- 
ing out  of  the  transaction  compensate  one  another,  and  the  plaint- 
iff is  entitled  to  recover  only  the  balance;3  a  rule  which  applies 
equally  to  actions  for  the  purchase  price  of  land.4  Where  the  action 
is  brought  upon  a  bond  given  for  the  purchase-money  of  land,  de- 
fendant may  set  up  as  a  counter-claim  and  recoup  the  value  of 
fixtures  removed  by  the  vendor  without  defendant's  knowledge 
or  consent  after  the  contract  of  sale  and  before  the  formal  transfer 
of  the  land.5  So,  too,  in  an  action  on  a  note  given  for  the  pur- 
chase-money of  land,  defendant  may  recoup  the  value  of  a  crop 
taken  from  the  land  by  the  vendor  after  the  sale.6  But  defendant 
cannot  set  up  as  a  counter-claim  the  fact  that  the  sheriff  took  per- 
sonal property  from  his  possession  and  delivered  it  into  the  pos- 
session of  plaintiff,  and  that  plaintiff  has  had  the  use  and  enjoy- 
ment of  it,  since,  while  the  property  was  in  the  possession  of  the 
sheriff,  defendant  having  no  right  of  user  of  it  could  claim  noth- 
ing for  its  use  by  another.7 

§680.  Same  —  In  proceedings  against  stockholders, —  Sec- 
tion 985 8  provides  that,  where  an  execution  against  a  corpora- 
tion has  been  returned  nulla  bona,  the  execution  creditor  may 

kelson    v.    Johnson,    25  Mo.   430;  5  Grand  Lodge  v.  Knox,  20  Mo.  433. 

Brockhaus  v.  Schilling,  52  App.  73;  This  case  contains  a  review  of  the  au- 

Owens  v.  Rector,  44  Mo.  389.  thorities  on  the  subject  of  recoup- 

2  Hall  v.  Clark,  21  Mo.  415.  ment. 

3  Brown  v.  Weldon,  27  App.  251,  99  6  Gordon  v.  Bruner,  49  Mo.  570. 

Mo.  64.  7  Meincke  v.  Bracksieck,  14  App.  315. 

4  Hall  v.  Clark,  21  Mo.  415;  House  v.     See  also  §  658,  ante. 
Marshall,  18  Mo.  368.  8Rev.  Stat.  1899. 


356  the  axswkk.  [§  681. 

proceed  by  a  motion  against  any  stockholder  of  the  corporation, 
whoso  shares  have  not  been  fully  paid,  for  an  execution  against 
such  stockholder  to  the  extent  of  the  balance  remaining  unpaid 
on  his  stock.  It  is  the  well  settled  law  of  this  state,  that,  when 
such  a  proceeding  is  commenced  against  a  stockholder,  he  may 
set  off  any  matured  indebtedness  of  the  corporation  to  him, 
whether  or  not  he  formally  pleads  such  set-off  or  counter-claim.1 
I3ut  he  cannot  set  off  a  claim  against  the  corporation  which  was 
acquired  by  him  after  the  execution  against  the  corporation  had 
been  returned  nulla  bona.2 

§681.  Same  —  In  garnishment  cases. —  The  question  fre- 
quently arises  in  cases  of  garnishment  how  far  the  garnishee 
may  avail  himself  of  an  indebtedness  to  himself  by  the  execution 
defendant.  The  general  rule  is  that  the  garnishee  can  set  off 
only  such  claims  as  he  had  against  the  original  defendant  at  the 
date  of  the  garnishment,  and  as  were  then  due.3  If  a  bank  is 
garnished  in  an  attachment  suit  against  one  of  its  depositors,  it 
cannot  set  up,  either  as  a  defense  or  a  counter-claim,  that  it  holds 
a  note  against  such  depositor  for  a  greater  sum  than  the  amount 
of  its  deposit,  if  such  note  is  not  due  at  the  date  of  the  garnish- 
ment, even  though  the  depositor  was  insolvent  at  the  time.4 

i  Webber  v.  Leighton,  8  App.  502;  3  Clark  v.  Kinealy,  13  App.  104. 

Merchants'  Ins.  Co.  v.  Hill,  12  App.  *  Her  v.  Midland  Nat.  Bank,  69  App. 

148,  86  Mo.  466;  Jerrnan  v.  Benton,  79  64,  in  which  case  the  earlier  decisions 

Mo.  143.  are  cited.    See  also  §  671,  ante. 

2Coquard  v.  Prendergast,  35  App. 
237. 


CHAPTER  XXV. 


THE  ANSWER  —  DENIAL  UNDER  OATH. 


682.  The  statute. 

683.  To  what  cases  the  statute  ap- 

plies. 

684.  What  constitutes  a  denial  of 

execution. 
6S5.  Exceptions  to  the  rule. 

686.  Scope  of  the  words  "  corporate 

authorities." 

687.  Effect  of  omitting  the  affidavit. 


689.  Cases  illustrating  the  rule  as  to 

denying  under  oath. 

690.  Instrument  executed  by  agent. 

691.  Does    not    preclude  other  de- 

fenses. 

692.  Verification  may  be  supplied. 

693.  Denying  incorporation. 

694.  Denying  partnership. 


§  682.  The  statute. —  "When  any  petition  or  other  pleading  is 
founded  upon  an  instrument  in  writing  charged  to  have  been 
executed  by  the  other  party,  and  which  has  not  been  lost  or  de- 
stroyed, the  execution  of  the  instrument  is  adjudged  confessed 
unless  the  party  charged  to  have  executed  it  denies  the  execu- 
tion thereof  by  answer  or  replication  verified  by  affidavit.1  In 
an  action  before  a  justice  of  the  peace  on  a  note,  the  affidavit 
stated  that  defendant  did  not  sign  the  note  sued  upon,  and  it 
was  held  that  this  was  sufficient  to  put  in  issue  the  execution  of 
the  note,  though  the  statute  uses  the  word  "  execution  "  and  not 
"signing."2  Doubtless  the  same  rule  would  be  held  to  apply  to 
pleadings  in  a  court  of  record. 

§  683.  To  what  cases  the  statute  applies. —  It  is  not  neces- 
sary that  the  denial  of  the  execution  should  be  verified  by  affi- 
davit if  the  instrument  is  executed  by  both  parties.3  If  a  deed 
is  void  ah  initio,  and  not  merely  voidable,  and  there  is  a  plea  of 
non  est  factum  verified  by  affidavit,  any  facts  may  be  given  in 
evidence  which  tend  to  show  that  the  conveyance  is  void.4 
Plaintiff,  in  order  to  recover,  must  introduce  the  instrument  and 
must  offer  evidence  tending  to  prove  the  signature  of  the  defend- 
ant to  it,5  and  defendant  on  his  part  may  show  that  his  name 
was  procured  on  the  note  by  fraudulent  practices  and  without 


i  Rev.  Stat.  1899,  sec.  746. 

2  Edmonston  v.  Henry,  45  App.  346. 

3  Kelly  v.  Thuey,  143  Ma  422. 


4  Corby  v.  Weddle,  57  Mo.  452.    See 
§  590,  ante. 

5  Cox  v.  Bishop,  55  App.  135;  Smith 
v.  Roach,  59  App.  115. 


TI1E   ANSWER.  [§§  684,  685. 

his  consent.1  The  fact  that  a  bond  was  executed  in  the  name  of 
a  firm  1>\  one  of  its  members  without  authority  from  his  copart- 
ners cannot  bo  shown  unless  the  plea  of  nan  est  factum  is  veri- 
fied.- And  if  a  firm  sues  on  a  note  made  to  them,  a  plea  which 
simply  puts  in  issue  the  title  of  plaintiffs  to  the  note  sued  on 
admits  the  partnership  of  the  plaintiffs  as  alleged  in  the  petition.3 
In  an  action  on  a  bond  the  objection  that  it  was  not  properly 
executed  because  it  was  not  sealed  must  be  raised  by  denial  of 
its  execution  under  oath.4  The  above  section  746  applies  to  a 
contract  of  insurance  and  to  a  certificate  issued  by  a  benefit  so- 
ciety; and  plaintiff  is  not  required  to  offer  the  certificate  in  evi- 
dence nor  the  application  for  membership,  even  though  such 
application  is  made  a  part  of  the  contract.5 

§  684.  What  constitutes  a  denial  of  execution. —  Where  de- 
fendant pleads  that  the  legal  effect  of  the  instrument  sued  on  is 
different  from  that  alleged  by  the  plaintiff,  this  does  not  consti- 
tute a  denial  of  its  execution.6 

§685.  Exceptions  to  the  rule. —  The  section  requiring  the 
verification  of  a  denial  that  the  instrument  pleaded  was  executed 
by  the  party  charged  therewith  does  not  extend  so  far  as  to  per- 
mit an  instrument  to  be  received  in  evidence  without  proof  of 
its  execution  if  the  action  is  against  an  executor  or  administrator;, 
or  any  other  person  representing  the  person  charged  to  have  ex- 
ecuted the  instrument,  nor  against  any  county,  city  or  town 
which  is  sued  upon  an  instrument  alleged  to  have  been  executed 
by  such  county,  city  or  town,  or  any  corporate  authorities.7  The 
statute  has  no  reference  to  bonds  or  notes  issued  by  an  agent, 
and  the  defendant  may  in  such  case  show  the  agent's  want  of 
authority,  though  he  fails  to  deny  the  execution  under  oath.8 
Section  746 9  has  no  application  to  an  action  against  a  guardian 
of  a  person  of  unsound  mind,  when  the  latter  is  charged  to  have 
executed  the  note  sued  on;  and  the  execution  of  such  note  must 
be  proved  before  it  can  be  introduced  in  evidence.10 

i  Corby  v.  Weddle,  57  Mo.  452.  »  Rev.  Stat  1899,  sec.  747;  Julian  v. 

2  Green  County  v.  Wilhite,  29  App.    Rogers,  87  Mo.  229. 

459.  8  Wahrendorrr   v.  Whitaker,  1  Mo. 

3  Arthur  v.  Pendleton,  7  Mo.  519.  205;  Pope  v.  Risley,  23  Ma  185;  Car- 

4  State  to  use  v.  Cbamberlin,  54  Mo.  penter  v.  Lathrop,  51  Mo.  483;  Mc- 
338.  Quade  v.  St  Louis,  9  App.  580.    See 

5  Thomas   v.   Guaranty  Fund  Life  also  §  690,  post. 
Aas'n,  73  App.  371.  s  Rev.  Stat.  1899. 

6  Cox  v.  Volkert,  86  Mo.  505.  w  Wisdom  v.  Shanklin,  74  App.  428. 

Consult  also  §  683,  ante. 


§§  686,  687.]  DENIAL    UNDER   OATH.  359 

§686.  Scope  of  the  words  ie  corporate  authorities."  —  The 

words  "  corporate  authorities,"  contained  in  section  717,1  are  not 
to  be  so  construed  as  to  make  that  section  apply  to  a  business 
corporation.2 

§  687.  Effect  of  omitting  the  affidavit. —  The  decisions  of  this 
state  as  to  the  effect  of  denying  without  oath  the  execution  of 
an  instrument  are  not  altogether  harmonious.  This  is  due  in 
part  to  the  different  wording  of  the  statute  at  different  periods. 
Thus,  prior  to  1868  the  statute  provided  that  if  the  execution 
were  not  denied  under  oath  the  instrument  should  be  "  received 
in  evidence;"  and  it  was  held  that  the  effect  of  that  statute  was 
simply  to  change  the  rule  of  evidence,  and  to  make  the  instru- 
ment admissible  without  proving  its  execution.  But  under  that 
statute  it  was  necessary  to  produce  the  instrument  at  the  trial.3 
The  amendment  of  1868 4  so  changed  the  law  that  the  effect  of 
the  failure  to  verify  the  answer  is  not  merely  to  permit  the  in- 
troduction of  the  instrument  without  proof  of  its  execution.  The 
statute  says  that  "  the  execution  of  the  instrument  shall  be  ad- 
judged confessed,"  if  not  denied  under  oath.  And  such  is  the 
present  reading  of  the  statute.5  At  first  this  amendment  was 
very  narrowly  construed.  In  Ilammerslough  v.  Cheatham6  the 
answer  averred  that  the  deed  of  trust  which  was  the  basis  of  the 
suit  "  was  not  executed  or  delivered  "  by  the  assumed  grantor 
therein,  but  the  answer  was  not  verified.  Evidence  was  admitted 
to  show  that,  while  the  instrument  was  signed  by  the  grantor,  it 
was  never  delivered  by  her.  And  the  supreme  court  held  that 
this  ruling  was  correct,  saying  that  the  section  in  question  "  ap- 
plies only  to  the  manual  signing  of  the  instrument,  and  not  to 
the  act  of  delivery."  (p.  22.)  I  think,  however,  that  this  decis- 
ion stands  alone,  and  is  opposed  to  the  entire  current  of  the  Mis- 
souri decisions  as  to  what  constitutes  the  execution  of  an  instru- 
ment. In  1860  the  supreme  court  said  that  the  delivery  of  a 
note  is  necessary  to  its  complete  execution  and  is  essential  to  its 
validity.7  And  again  in  1862  the  same  court  says  that  an  alle- 
gation that  defendant  executed  his  note  is  a  sufficient  averment 
of  delivery.8    In  1873  that  court  decided  that  sealing  and  deliv- 

1  See  preceding  section.  4  Laws  18C8,  p.  86. 

2  Parsons  v.  Egyptian  Levee  Co.,  73  5  Rev.  Stat.  1899,  sec.  746. 
App.  458.  «84Mo.  13. 

3  Carroll  v.  Corn,  1  Mo.  101;  Hanly  1  Carter  v.  McClintock,  29  Mo.  464 
v.  Reed,  1  Mo.  487;  Foster  v.  Nowlin,  8  Meyer  v.  Fette,  31  Mo.  423. 

4  Mo.  18;  Payne  v.  Snell,  4  Mo.  238; 
Dempsey  v.  Harrison,  4  Mo.  207. 


360  the  answei;.  [§§  GSS,  GS9. 

ery  are  included  in  the  term  " execution  of  a  deed;"1  and  in  1SSG 
that  the  signing  and  delivery  are  included  in  the  execution  of  a 
note.8  As  late  as  1898  it  reiterates  its  position  on  this  point, 
savin.;'  that  a  deed  is  not  executed  until  delivered.3 

§  688.  Such,  too,  has  been  the  holding  of  the  court  of  appeals. 
In  Bates  v.  S  '  '.'  '  it  is  said  that  where  defendant  is  charged 
with  executing  a  contract  it  is  not  necessary  to  aver  a  delivery 
of  it.  In  fact,  even  if  there  were  no  other  decisions  contrary  to 
that  of  Hammerslough  v.  Cheatham?  that  case  must  be  consid- 
er! d  as  having  been  practically  overruled  by  Hart  v.  Harrison 
Wire  Co.,6  where  the  court  uses  this  language:  "By  failing  to 
deny  the  execution  by  answer  verified  by  affidavit,  the  party 
admits  the  genuineness  of  the  signatures  and  also  delivery  of  the 
instrument,  the  signing  and  delivery  being  included  in  the  exe- 
cution.',7 

§  680.  Cases  illustrating  the  rule  as  to  denying  under  oath. 
By  a  failure  to  verify  the  pleading,  a  party  attacking  the  instru- 
ment will  be  precluded  from  introducing  any  proof  tending  to 
impeach  the  execution  of  the  instrument.8  And  evidence  to  show 
that  the  signature  to  the  contract  was  procured  by  fraud  is  evi- 
dence tending  to  impeach  the  execution  of  the  instrument.9  But 
it  seems  that  a  fraudulent  alteration  of  the  instrument  may  be 
shown  though  there  is  no  affidavit.10  Though  a  bond  is  signed 
in  the  firm  name,  and  no  authority  is  shown  from  the  firm  for 
executing  it,  yet  the  effect  of  a  failure  to  deny  its  execution  under 
oath  is  that  the  execution  stands  confessed.11  So,  too,  where  the 
answer  of  one  defendant  contained  an  allegation  that  one  of  his 
copartners  had,  in  signing  the  contract  sued  on,  acted  outside  of 
the  scope  of  the  partnership,  and  that  therefore  the  defendant 
so  answering  was  not  bound,  but  the  answer  was  not  verified, 
the  execution  of  the  contract  was  confessed.12  If  the  allegation 
of  the  petition  is  that  a  promissory  note  was  executed  by  a  busi- 

1  State  to  use  v.  Chamberlin,  54  Mo.  8Beck  Lith.  Co.  v.  Obert,  54  App. 
338.  240. 

2  Hart  v.  Harrison  Wire  Co.,  91  Mo.  9  Beck  Lith.  Co.  v.  Obert,  54  App. 
414.  240;  Corby  v.  Weddle,  57  Mo.  452. 

»  Hall  v.  Farmers'  Bank,  145  Mo.  418.       10  Law  v.  Crawford,  67  App.  150.  Sub- 

4  47  App.  642.  stantially  the  same  rule  is  laid  down 

5  84  Mo.  13.  by  the  supreme  court  in  a  quite  early 
«  91  Mo.  414.  case.    Whitmer  v.  Frye,  10  Mo.  348. 

7  91  Mo.,  p.  422.  "  McGill  v.  Wallace,  22  App.  675. 

12  Bates  v.  Scheik,  47  App.  612. 


§§  690-G93.]  DENIAL  UNDER  OATH.  361 

ness  corporation,  an  unverified  answer  admits  the  execution.1  So 
far  has  this  rule  been  carried  that  it  has  been  held  that  plaintiff 
is  under  no  obligation  to  prove  the  execution  of  the  instrument  if 
not  denied  by  a  verified  pleading,  though  the  petition  alleges 
that  defendant  signed  the  note  under  a  name  not  his  own.2 

§  680.  Instrument  executed  by  agent. —  If  the  note  sued  on 
is  executed  by  an  agent,  and  the  execution  is  denied  by  an  un- 
verified answer,  the  authority  of  the  agent  must  nevertheless 
be  proved.3 

§  691.  Does  not  preclude  other  defenses. —  The  adjudication 
by  confession  to  which  the  plaintiff  is  entitled  under  section  746 4 
is  limited  to  the  execution  of  the  instrument.  If  his  petition  fails 
to  state  facts  sufficient  to  constitute  a  cause  of  action,  he  will  not 
be  entitled  to  judgment.5  And  while,  by  failing  to  deny  under 
oath,  the  execution  of  the  contract  stands  admitted,  yet  defend- 
ant may  set  up  in  his  answer  a  new  or  modified  contract  subse- 
quently entered  into  between  the  parties.6  The  fact  that  plaintiff 
is  the  owner  of  the  instrument  may  be  put  in  issue  without  a 
verification.7  If  defendant  contends  that  the  legal  effect  of  the 
instrument  sued  on  is  different  from  that  alleged  by  plaintiff,  this 
is  not  such  a  denial  of  its  execution  as  requires  that  the  answer 
shall  be  verified.8  Where  the  action  is  on  a  written  contract, 
and  the  answer  contains,  first,  a  duly  verified  denial  of  the  execu- 
tion of  the  writing,  and,  secondly,  alleges  that  the  contract  was 
not  performed  in  accordance  with  its  terms,  the  answer  taken  as 
a  whole  does  not  constitute  an  admission  of  the  execution  of  the 
instrument.9 

§  692.  Verification  may  be  supplied. —  Where  the  fact  is  that 
defendant  was  not  a  party  to  the  instrument  sued  on  and  so  stated 
in  his  answer,  but  through  inadvertence  he  failed  to  verify  his 
answer,  he  should  be  permitted  on  suitable  terms  to  supply  the 
affidavit.10 

§  693.  Denying  incorporation. —  Where  plaintiff  or  defend- 
ant sues  or  is  sued  as  a  corporation,  it  is  not  necessary  to  prove 

i  Patrick  v.   Boonville  Gas  Co.,  17  5  Hart  v.  Harrison  Wire  Co.,  91  Mo. 

App.  462;  Smith  v.  Rembaugh,  21  App.  414 

390.  6Merrill  v.  Central  Trust  Co.,  46  App. 

2Zervis  v.  Unnerstall,  29  App.  474.  236. 

And  Saville  v.  Huffstetter,  63  App.  ^Saville  v.  Huffstetter,  63  App.  273. 

273,  recognizes  the  rule.  8  Cox  v.  Volkert,  86  Mo.  505. 

3  Swearingen  v.   Knox,   10  Mo.  31.  9  Cox  v.  Bishop,  55  App.  135. 

See  also  §  685,  ante.  ln  Anderson  v.  Hance,  49  Mo.  159. 

<  Rev.  Stat.  1899. 


362  THE   ANSWER.  [§  694. 

the  incorporation,  unless  the  fact  is  put  in  issue  by  an  affidavit 
filed  with  the  pleadings.1  The  denial  of  the  incorporation  must 
be  by  an  affidavit  filed  with  the  pleading;  it  is  not  sufficient  to 
deny  it  in  the  pleading  itself,  though  the  latter  is  verified.2  The 
section  applies  to  municipal  corporations  as  well  as  to  private 
corporations,  and  the  corporate  existence  of  a  defendant  sued  as 
a  municipal  corporation  is  admitted  unless  denied  in  an  affida- 
vit filed  with  the  answer.3  If  in  an  action  by  a  school  district 
the  allegations  of  the  petition  that  it  was  duly  organized  as  a 
village  school  district,  and  was  duly  incorporated  as  such,  are 
put  in  issue  by  the  answer,  and  plaintiff's  corporate  existence  is 
denied  in  an  affidavit  by  defendant,  the  burden  is  thereby  cast 
on  the  plaintiff  to  prove  its  corporate  existence.4 

§  694.  Denying  partnership. —  Where  plaintiffs  or  defend- 
ants sue  or  are  sued  as  a  partnership,  and  the  names  of  the  sev- 
eral partners  are  set  forth  in  the  petition  or  answer,  it  is  not 
necessary  to  prove  the  fact  of  the  partnership,  unless  such  fact 
is  put  in  issue  by  an  affidavit  filed  with  the  pleading.5  This  sec- 
tion not  only  relieves  the  party  alleging  a  partnership  from  the 
necessity  of  proving  the  fact,  unless  the  opposite  party  puts  it  in 
issue,  but  it  prescribes  the  only  manner  of  tendering  such  issue, 
and  that  is  by  affidavit  filed  with  the  pleading.5  The  section 
applies  only  to  actions  by  or  against  partners;  if  the  suit  is 
for  an  accounting  between  partners,  the  allegation  of  partner- 
ship is  not  admitted  by  a  failure  to  deny  it  by  affidavit.7  The 
objection  that  a  bond  was  executed  in  the  name  of  a  firm  by 
one  of  its  members  without  authority  from  his  copartners  must 
be  verified  by  affidavit.8  If  a  firm  sues  on  a  note  made  to  them, 
and  the  answer  simply  puts  in  issue  the  title  of  the  plaintiffs  to 
the  note,  it  admits  the  plaintiffs'  partnership.9 

i  Rev.  Stat.  1899,  sec.  746.  5  Rev.  Stat.  1899,  sec.  746. 

-'Meyer  v.  Insurance  Co.,  73  App.  166.  eHaysler  v.  Dawson,  28  App.   531. 

3  Pierce  v.  Lutesville,  25  App.  317;  The  same  rule  applies  in  case  of  a  cor- 

Waiker  v.   Point  Pleasant,   49  App.  poration.     Meyer  v.  Insurance  Co.,  73 

211.  This  is  undoubtedly  the  meaning  App.  166. 

to    be    placed  upon  these  decisions,  7  Short  v.  Taylor,  137  Mo.  517. 

though  they  apparently  speak  of  a  8  Greene  County  v.  Wilhite,  29  App. 

verified  answer.  459. 

*  School  District  v.  Wallace,  75  App.  9  Arthur  v.  Pendleton,  7  Ma  519. 
317. 


CHAPTEK  XXVI. 

THE  FOREGOING  RULES  GOVERNING  ANSWERS  APPLIED  TO  VA- 
RIOUS ISSUES  AND  PROCEEDINGS. 


Pleading  notice. 

Pleading  payment. 

Pleading  the  statute  of  frauds. 

The  answer  to  an  action  on  an 
account  stated. 

To  actions  on  bills  or  notes. 

Decisions  as  to  answers  in  ac- 
tions on  bills  or  notes. 

The  answer  to  actions  on  bonds. 

Actions  against  carriers. 

Actions  on  contracts. 

On  lost  instrument. 

Actions  of  ejectment. 

Equitable  defense  in  ejectment. 

Actions  on  insurance  policies. 

Actions  on  judgments. 

Actions  between  landlord  and 
tenant. 

In  mechanics'  lien  suits. 

Actions  for  services. 

Actions  for  slander  or  libeL 

Actions  against  surety. 

Actions  for  trespass. 


§  695.  Pleading  accord. —  A  plea  of  accord  and  satisfaction 
which  fails  to  state  that  the  matter  relied  upon  as  an  accord  was 
accepted  as  a  satisfaction  by  the  creditor  will  be  held  bad  if  de- 
murred to,1  but  is  good  after  verdict.2  Thus  a  plea  alleging  that 
defendant  executed  to  plaintiff  a  deed  which  was  to  be  absolute 
in  case  the  note  in  suit  was  not  paid,  without  alleging  an  accept- 
ance of  the  deed  in  satisfaction,  is  bad.3  A  plea  of  accord  and 
satisfaction  is  new  matter  which  requires  a  reply.4 


§  695. 

Pleading  accord. 

§  715- 

696. 

Pleading  appeal. 

716. 

697. 

Defenses  under  the  bankruptcy 

717. 

law. 

718. 

698. 

Pleading  duress. 

699. 

Pleading  a  former  recovery. 

719. 

700. 

The  defense  of  fraud. 

720. 

701. 

The  defense  of  illegality. 

702. 

The  defense  of  innocent  pur- 

721. 

chaser  for  value. 

722. 

703. 

Pleading  want  of  jurisdiction. 

723. 

704. 

Pleading  the  statute  of  limita- 

724. 

tions. 

725. 

707. 

Nature  of  this  defense. 

726. 

708. 

Duty  of  legal  representative  to 

727. 

plead  the  statute. 

728. 

709. 

Pleading  foreign  statute  of  lim- 
itations. 

729. 

710. 

Mode  of  pleading  the  statute  of 

730. 

limitations. 

731. 

712. 

Pleading    contributory    negli- 

732. 

gence. 

734. 

713. 

Extent  of  the  rule. 

735. 

714. 

Manner  of  pleading  contribu- 
tory negligence. 

i  Oil  Well  Supply  Co.  v.  Wolfe,  127 
Mo.  G16. 

2  Wilkerson  v.  Bruce,  37  App.  156. 


3  Shaw  v.  Burton,  5  Mo.  478. 

4  Robinson  v.  Suter,  15  App.  399. 


3{J±  THE  ANSW  KK.  [§§  G9G-700. 

£  696,  Pleading  appeal. —  An  allegation  in  an  answer  that  an 
appeal  has  been  taken  is  insufficient;  the  answer  should  further 
allege  that  the  appeal  is  pending  and  undetermined.1 

^  697.  Defenses  under  the  bankruptcy  law. —  A  bankrupt 
who  is  sued  for  a  debt  which  was  contracted  before  his  bank- 
ruptcy must  set  up  his  discharge  in  bar  of  the  action.2  Where  a 
bankrupt  pleads  his  discharge,  and  the  plea  is  met  by  an  aver- 
ment that  the  discharge  was  invalid  by  reason  of  a  fraudulent 
transfer  of  property  by  the  bankrupt,  it  is  not  necessary  to  set 
out  the  property  so  fraudulently  transferred,  nor  the  names  of 
the  nominal  parties  to  the  conveyance;  it  is  sufficient  to  set  out 
the  names  of  those  beneficially  interested  in  the  transfer.3 

§  69S.  Pleading  duress. —  In  pleading  duress  per  minas,  an 
allegation  of  "  threats,  intimidation  and  overbearing  persistency  " 
of  the  party  is  insufficient.  The  nature  of  the  threats  and  defend- 
ant's fear  of  their  execution  must  be  alleged.4 

§  699.  Pleading  a  former  recovery. — The  defense  of  a  former 
adjudication  must  be  specially  pleaded,  since  it  cannot  be  proved 
under  a  general  denial.5  It  is  a  defense  which  must  be  made  by 
answer,  and  cannot  ordinarily  be  raised  by  demurrer.6  If,  how- 
ever, the  petition  shows  upon  its  face  that  every  material  issue 
of  fact  alleged  therein  has  been  adjudged  in  a  former  case,  a  de- 
murrer will  lie,  and  it  is  in  such  a  case  not  necessary  to  file  an 
answer  in  order  to  raise  the  defense.7  A  plea  of  res  judicata  is 
not  sufficient  if  it  fails  to  state  that  the  court  in  which  the  judg- 
ment was  rendered  had  jurisdiction  of  the  parties  and  of  the 
subject-matter,  or  at  least  that  it  was  a  court  of  general  jurisdic- 
tion.8 In  an  action  for  rent  accruing  on  a  lease,  the  answer 
averred  that  plaintiff  had  already  maintained  one  action  against 
defendant  on  the  lease  in  question,  and  had  in  that  action  recov- 
ered a  judgment  for  rent  which  embraced  a  part  of  the  time  for 
which  recovery  was  sought  in  the  suit  in  question,  and  this  was 
held  to  constitute  a  good  defense,  at  least  pro  tanto,  and  there- 
fore a  general  demurrer  to  the  petition  was  properly  overruled.9 

§  7C0.  The  defense  of  fraud. —  It  was  the  rule  at  common 
law  that  a  general  allegation  of  fraud  was  sufficient  in  an  answer,10 
which  ruling  was  followed  in  the  first  case  involving  this  ques- 

i  Poteet  v.  Boyd,  10  Mo.  160.  6  Kelly  v.  Hurt,  61  Mo.  463. 

2  Bank  v.  Franciscus,  15  Mo.  303.  7  Givens  v.  Thompson,  110  Mo.  432. 

3  Shelton  v.  Pease,  10  Mo.  473.  8  State  to  use  v.  Brooke,  29  App.  286. 
*  Murdoch:  v.  Lewis,  26  App.  234  9  Kerr  v.  Simmons,  82  Mo.  269. 

be  ex  reL  v.  Henning,  55  App.       10  Montgomery  v.  Tipton,  1  Mo.  446; 
570.  Pemberton  v.  Staples,  6  Mo.  59. 


§  YOG.]  FOREGOING   KULES    APPLIED.  365 

tion  which  was  decided  after  the  change  in  the  system.1  In  that 
case  the  court  says:  "Under  the  former  system  it  was  sufficient 
to  state  this  matter  in  this  general  form.  Fraud  usually  consist- 
ing of  a  great  multiplicity  of  facts  and  circumstances,  it  was 
found  by  experience  highl}*  inconvenient,  if  not  quite  impracti- 
cable, to  set  them  forth  with  particularity,  and  hence  this  general 
mode  of  stating  such  matter  of  defense  forced  itself  into  use,  and 
was  approved  of  by  the  courts.  And  we  see  no  reason  for  hold- 
ing otherwise  under  the  new  code."2  The  doctrine  announced 
in  Edgell  v.  Sigerson*  was  adhered  to  as  late  as  the  year  1870  in 
Fox  v.  Webster; 4  but  the  case  of  Clough  v.  Holden*  while  it  does 
not  overrule  the  above  cases,  certainly  weakens  their  authority, 
the  doctrine  announced  in  them  being  so  limited  as  to  permit 
a  general  charge  of  fraud  in  an  answer  only  when  the  fraud 
charged  in  the  answer  refers  to  matter  stated  in  the  petition. 
Otherwise  a  bare  allegation  of  fraud  is  no  mors  sufficient  in  an 
answer  than  in  a  petition.  This  distinction  is  not  entirely  clear. 
However,  if  the  action  is  one  to  collect  a  note  given  in  settle- 
ment, and  defendant  desires  to  attack  the  settlement  for  fraud, 
or  because  of  errors  or  mistakes,  the  answer  musit  specifically  set 
forth  the  fraud,  errors  or  mistakes  complained  of.6  And  a  like 
rule  applies  where  the  action  is  on  an  account  stated.7  In  Nichols 
v.  Stevens 8  the  case  of  Edgell  v.  Sigerson 9  is  expressly  overruled ; 

1  Edgell  v.  Sigerson,  20  Mo.  494  ably  that  while,  as  I  shall  show,  our 

2  20  Mo.,  p.  496.  It  must  be  admitted  courts  have  somewhat  receded  from 
that  this  reasoning  is  not  without  the  early  position,  and  now  hold  that 
force.  Courts  have  always  studiously  in  an  answer,  as  well  as  in  a  petition, 
refrained  from  defining  fraud  for  the  the  facts  constituting  the  fraud  must 
reason  that  it  presents  itself  in  so  be  set  forth  by  the  pleader,  they  have 
many  and  various  phases,  and  because  never  laid  down  any  definite  rule  for 
to  do  so  would  have  a  tendency  to  the  guidance  of  the  pleader  — they 
limit  the  powers  of  the  court  in  afford-  have  never  delimited  the  particularity 
ing  a  remedy  for  fraudulent  practices,  and  fullness  which  it  is  necessary  to 
It  certainly  strikes  one  that  this  rea-  employ  in  pleading  these  facts  and 
son  applies  with  almost  equal  force  to  circumstances.  See,  in  this  connec- 
tive defining  of  fraud  in  a  pleading,  tion,  1  Chitty,  Plead.  (16th  Am.  ed.), 
If  the  pleader  is  compelled  to  state  p.  608. 

all  the  facts  and  circumstances  which  320  Mo.  494. 

he  relies  upon  to  prove  fraud,  he  will  *  46  Mo.  181. 

not  only  be  compelled  to  violate  the  5 115  Mo.  336. 

ruleagainstpleadingevidentiary  facts,  6  Kronenberger  v.  Binz,  56  Mo.  121. 

but  will  be  greatly  hampered  in  prov-  7  Marmon  v.  Waller,  23  App.  610. 

ing  an  issue  which  under  the  most  8 123  Mo.  96. 

favorable  circumstances  it  is  difficult  920  Mo.  494. 
to  prove.     It  is  for  this  reason  prob- 


366  the  answer.  [§§  701,  702. 

and  the  supreme  oourt  declares  that  in  reference  to  pleading 
fraud  there  is  no  distinction  between  a  petition  and  an  answer, 
and  that  an  answer  must  state  the  constitutive  facts  of  the  fraud 
relied  on. 

§  701.  The  defense  of  illegality. —  In  setting  up  the  defense 
that  the  transaction  forming  the  basis  of  the  suit  was  a  gam- 
bling contract,  it  is  enough  to  aver  that  the  contract  actually 
made  by  the  plaintiff  was  immoral,  illegal  and  void,  in  that  it 
was  mutually  agreed  between  the  parties  that  there  should  be 
no  delivery  of  the  article  sold,  but  that  the  parties  thereto  should, 
at  the  time  agreed  upon  for  its  delivery,  settle  the  difference  in 
the  price  agreed  to  be  paid  and  the  market  price  at  that  time. 
Thus,  if  the  answer  sets  up  that  plaintiffs,  as  defendant's  brokers, 
entered  into  a  contract  for  the  purchase  of  grain,  writh  the  un- 
derstanding that  none  was  to  be  delivered,  but  that  the  differ- 
ence in  price  at  the  time  of  the  contract  and  at  the  time  of  the 
pretended  delivery  was  to  be  settled  for  in  money,  and  that  the 
note  sued  on  was  given  solely  in  consideration  of  the  loss  so  in- 
curred, it  sufficiently  states  the  illegality  of  the  contract.1  Where 
the  defense  is  that  the  note  was  given  for  a  bet  on  an  election, 
the  answer  must  state  that  the  election  was  one  authorized  by 
law,  wmat  particular  election  it  was,  between  whom  pending, 
and  the  other  necessary  facts  going  to  show  that  it  was  properly 
and  legally  held.2 

§  702,  The  defense  of  innocent  purchaser  for  value. —  To 
entitle  a  person  to  invoke  the  aid  of  a  court  of  equity  on  the 
ground  that  such  person  is  a  bona  fide  purchaser  for  value  and 
without  notice,  it  must  appear  that  he  made  his  purchase  and 
paid  the  purchase-money  before  he  had  notice  of  the  prior  equi- 
ties; he  must  therefore  show  fully  and  explicitly  the  time  and 
terms  of  his  purchase,  and  of  the  payment  of  the  purchase-money. 
In  a  case  where  the  petition  contains  no  allegation  as  to  notice, 
or  where  plaintiff  does  not  base  his  recovery  upon  the  fact  that 
defendant  had  notice,  it  would  seem  on  principle,  and  by  analogy 
with  the  rule  in  cases  of  fraud,  that  the  answer  of  one  who  bases 
his  defense  upon  the  claim  that  he  is  an  innocent  purchaser  for 
value  must  specifically  set  forth  the  above  facts.  But  in  a  case 
where  plaintiff  sought  to  charge  land  in  the  hands  of  defendant 
with  the  payment  of  certain  notes,  on  the  ground  that  plaintiff 
had  an  equitable  mortgage  on  the  land,  and  that  defendant  pur- 

i  Buckingham  v.  Fitch,  18  App.  91.  *  Sybert  v.  Jones.  19  Mo.  86. 


§  703.]  FOREGOING   BTTLES   APPLIED.  367 

chased  with  notice  of  plaintiff's  equitable  rights,  it  was  held,  ap- 
parently with  some  hesitation,  that  a  simple  denial  of  the  allega- 
tions of  the  petition  was  sufficient  to  allow  proof  by  defendant  of 
all  these  facts.1  However,  in  Young  v.  Schojield,2  while  the  ques- 
tion did  not  properly  arise,  because  in  that  case  it  was  the  plaintiff 
who  claimed  to  be  an  innocent  purchaser,  yet  the  court  under- 
takes to  lay  down  the  rule  governing  the  answer  in  such  a  case. 
It  says :  "  The  claim  of  innocent  purchaser  is  in  an  answer  an  af- 
firmative defense,  and  in  a  petition  occupies  a  similar  affirmative 
attitude."  (p.  660.)  The  court  adds  that,  not  only  must  the  affirma- 
tive claim  or  affirmative  plea  contain  all  the  elements  necessary  to 
make  one  an  innocent  purchaser  for  value,  but  those  elements  must 
be  appropriately  amplified.  Under  the  former  practice  in  equity, 
defendant  was  required  to  aver  with  much  explicitness  all  the 
facts  necessary  to  constitute  him  an  innocent  purchaser  for  value.3 
And  the  spirit  of  the  Code,  whose  object  is  to  require  each  party 
to  present  his  side  of  the  case  with  the  utmost  fairness,  so  as  to 
avoid  all  surprise  and  undue  advantage,  should  not  be  held  to  re- 
quire less  than  was  required  by  the  courts  of  chancery  in  the  past. 
It  is  certain  that  the  defense  cannot  be  raised  under  the  general 
denial.4 

§  703.  Pleadiug  want  of  jurisdiction. —  In  an  action  upon  the 
judgment  of  a  sister  state,  a  plea  to  the  jurisdiction  is  insufficient 
which  alleges  that  defendant  was  not  a  resident  of  the  state  in 
which  the  judgment  was  rendered ;  the  averment  should  be  that 
defendant  was  not  in  that  state.5  An  answer  to  an  action  on  an 
Illinois  judgment,  from  which  it  appears  that  the  law  of  that  state 
provides  for  notice  by  publication,  and  which  alleges  that  the  de- 
fendant did  not  have  notice  personally  or  by  publication,  does 
not  sufficiently  allege  want  of  notice  by  publication.6 

i  Wallace  v.  Wilson,  30  Mo.  335,  340.  given  by  publication.     It  appears  also 

2 132  Mo.  650.  from  the  opinion  that  the  statute  of 

3  Wallace  v.  Wilson,  30  Mo.  335.  Illinois  provides  a  third  method  of 

4Holdsworth  v.  Shannon,  113  Mo.  giving  notice  in  such  cases,  and  the 

508.  answer  failed  to  negative  that  method. 

6  Wilson  v.  Jackson,  10  Mo.  330.  The  case,  however,  possesses  little,  if 

8  Meyer  v.  Hartmann,  12  A  pp.  586.  any,  authority,  since  on  a  rehearing 

This  case  is  not  reported  in  full     But  the    position    was    practically  aban- 

an  examination  of  the  opinion  on  file  doned.     See  Meyer  v.  Hartmann,  14 

discloses  the  fact  that  the  ground  of  App.  130. 

the  above  decision  is  that  the  averment  A  case  involving  a  method  of  plead- 

of  the  answer  was  only  that  defendant  ing  notice  will  be  found  in  §  734, 

dil  not  have  notice,  while  it  should  post. 

have  been  that  notice  was  not  in  fact 


THE   ANSWER.  [§§  704,  705. 

§  704-.  Pleading  the  statute  of  limitations.— Both  at  com- 
mon law  and  under  the  Code  the  defense  of  the  statute  of  limita- 
tions must  be  raised  by  answer,  except  in  those  cases  where  the 
statute  confers  title,  in  which  case  it  becomes  available  under 
the  general  issue  or  general  denial,1  as  in  actions  of  ejectment.2 
The  reason  why  the  rule  does  not  apply  to  actions  of  ejectment 
is  that  an  adverse  possession  for  the  period  designated  in  the  stat- 
ute operates  not  merely  as  a  defense,  but  is  affirmative  in  its 
effect,  the  adverse  possession  conferring  an  absolute  title  upon 
the  adverse  possessor.  As  defendant  may  show  in  such  an  action 
that  defendant  has  no  title,  since  this  tends  to  disprove  his  right 
to  possession,  he  effectually  disproves  plaintiff's  title  by  showing 
title  in  himself  by  reason  of  adverse  possession.  Therefore  the 
operation  of  the  statute  may  be  shown  under  the  general  allega- 
tion of  the  petition,  or  the  general  denial  of  the  answer.3 

§  705.  Defendant  must  set  up  the  defense  and  make  it  at  the 
trial;  he  cannot  raise  the  question  for  the  first  time  in  the  su- 
preme court.4  It  cannot  ordinarily  be  taken  advantage  of  by 
demurrer;5  though  if  all  the  necessary  facts  appear  upon  the 
face  of  the  petition  the  defense  may  be  made  by  demurrer,6  as  in 
cases  in  which  the  statute  creates  a  bar  without  any  exception.7 
But  the  defense  can  be  raised  by  demurrer  only  where  it  clearly 
appears  that  plaintiff's  case  has  been  fully  stated,  and  that  being 
so  stated  no  recovery  can  be  had.8  In  an  action  to  vacate  a 
judgment  on  the  ground  that  it  was  fraudulently  obtained,  and 
to  divest  defendants  of  their  title  acquired  under  the  judgment, 
it  appeared  upon  the  face  of  the  petition  that  more  than  twenty 
3rears  had  elapsed  since  the  right  of  action  had  accrued,  and  no 
reason  was  alleged  why  the  action  was  not  commenced  within 
the  twenty  years.     A  demurrer  to  this  petition  was  sustained.9 

!Benoist  v.  Darby,  12  Mo.  196;  Bell  Holmes  v.  Kring,  93  Mo.  452;  Stocker 

v.  Clark,  30  App.  224;  Orr  v.  Rode,  101  v.  Green,  94  Mo.   280;    Fairbanks  v. 

Mo.  387;  Stoddard  County  v.  Malone,  Long,  91  Mo.  628. 
llo  Mo.  508;  Maddox  v.  Duncan,  62        4  Winn  v.  Cory,  48  Mo.  346. 
App.  474.  s  Smith  v.  Dean,  19  Mo.  63. 

2  Nelson  v.  Brodhack,  44  Mo.   596;        6  State  to  use  v.  Bird,  22  Mo.  470.  - 
Fulkerson    v.    Mitchell,    82    Mo.    13;        7  State  to  use  v.  Bird,  22  Mo.  470; 

Holmes  v.  Kring,  93  Mo.  452;  Stocker  Maddox  v.  Duncan,  62  App.  474;  Hen- 

v.  Green,   94  Mo.   280;    Fairbanks  v.  och  v.  Chaney,  61  Mo.  129. 
Long,  91  Mo.  628;  Campbell  v.  Laclede        8  McNair  v.  Lott,  25  Mo.  182;  Boyce 

Gas  Light  Co.,  84  Mo.  352.  v.  Christy,  47  Mo.  70. 

■Nelson  v.  Brodhack,   44  Mo.  596;        9  Heffernan  v.  Howell,  90  Mo.  344, 
Fulkerson    v.    Mitchell,    82    Mo.    13: 


§5?   706,  707.]  FOREGOING    RULES   APPLIED.  369 

§  706.  If  defendant  fails  to  avail  himself  of  the  bar  of  the  stat- 
ute, either  by  demurrer  or  answer,  he  will  be  held  to  have  waived 
it.1  Even  an  administrator  may  waive  the  defense  that  a  claim 
presented  against  the  estate  is  barred  by  the  general  statute  of 
limitations,  and  will  be  held  to  have  waived  it  when  the  record 
does  not  show  that  he  interposed  it,  either  by  an  oral  plea  or 
otherwise,  it  being  his  duty,  even  when  there  are  no  written 
pleadings,  to  distinctly  bring  the  statute  to  the  attention  of  the 
trial  court  if  he  intends  to  insist  upon  it  as  a  bar.2  The  rule  that 
the  statute  is  not  available  as  a  defense  unless  pleaded  applies  to 
an  action  for  trespass  brought  under  the  statute  to  recover  treble 
damages.3  On  a  motion  for  judgment  against  a  sheriff  for  failing 
to  pay  over  money  which  he  had  made  on  execution,  the  officer 
may  show  that  the  claim  is  barred  by  the  statute,  though  he  has 
not  in  any  way  specially  pleaded  it.4 

§  707.  Nature  of  the  defense.— Section  6275  provides  that 
when  the  pleading  shall  set  up  the  statute  of  limitations  or  the 
statute  of  frauds,  or  any  other  legal  bar,  the  party  shall  not  be 
deprived  of  the  benefit  of  such  defense  by  reason  of  his  not  de- 
nying the  facts  set  forth  in  the  adverse  pleading.  In  Bauer  v. 
Wagner 6  there  is  an  intimation  that  in  order  to  raise  this  defense 
the  cause  of  action  must  be  confessed;  in  other  words,  that  the 
plea  of  the  statute  of  limitations  is  a  plea  in  confession  and  avoid- 
ance. But  that  case  was  an  action  in  ejectment,  in  which  it  is 
unnecessary  to  plead  the  statute  at  all,  as  has  been  fully  shown 
when  we  were  considering  what  defenses  are  raised  by  a  general 
denial.7  In  a  case  involving  the  question  of  pleading  the  statute 
of  frauds,  it  is  held  that  if  defendant  desires  to  take  advantage 
of  that  statute  he  must  either  deny  the  contract  or  else  admit  it 
and  plead  the  statute.8  I  am  not  aware  of  any  case  decided  by 
the  courts  of  Missouri,  other  than  those  for  the  possession  of  real 
property,  in  which  the  question  has  been  directly  passed  upon 
whether  a  like  rule  applies  to  pleading  the  statute  of  limitations, 
and  whether,  in  order  to  take  advantage  of  the  statute,  it  is  nec- 
essary to  confess  the  cause  of  action ;  although  in  Sehuchman  v. 

1  Boyce  v.  Christy,  47  Mo.  70;  Stiles       3  Stoddard  County  v.  Malone,  115  Mo. 
v.  Smith,  55  Mo.  363.  508. 

2  Carder  v.  Primm,  47  App.  301.  4  Mitchell  v.  Fulbright,  32  Mo.  551. 
A  case  involving  the  special  limita-        5Kev.  Stat.  1899. 

tion  appliable  to  mechanics'  liens  will        6  39  Mo.  385. 
be  found  in  §  730,  post  '  See  §  604,  ante. 


Mo.  Code  Pl.— 24 


8  Bless  v.  Jenkins,  129  Mo.  647. 


370  THE   ANSWER.  [§  70S. 

Heath  '  the  court  says  that  it  is  perfectly  competent  for  defend- 
ant in  an  action  on  a  promissory  note  to  interpose  the  statute  of 
limitations  and  also  to  deny  the  execution  of  the  note.  But  that 
was  a  ease  originating  before  a  justice  of  the  peace,  where  no 
written  answer  is  required;  and,  furthermore,  the  defendant  at 
the  trial  withdrew  the  plea  of  the  statute  and  elected  to  rest  his 
defense  on  other  grounds.  The  case  which  comes  nearest  to  de- 
ciding the  direct  question  is  that  of  McCormick  v.  Kaye?  where 
it  is  held  in  the  briefest  possible  language  that  defendant,  by 
filing  an  answer  in  an  action  of  trespass  containing  a  general 
denial,  a  justification  and  the  plea  of  the  statute  of  limitations, 
does  not  deprive  himself  of  the  right  to  invoke  the  statute  of 
limitations  as  a  defense,  since  the  several  defenses  are  not  incon- 
sistent. I  think  that  this  decision  is  conclusive,  and  that  it  is 
not  necessary,  in  order  that  defendant  may  avail  himself  of  the 
benefit  of  the  statute  of  limitations,  that  he  should  confess  the 
cause  of  action.  There  is,  for  instance,  nothing  inconsistent  in 
the  two  statements  that  the  defendant  did  not  execute  a  promis- 
sory note,  and  that  the  promissory  note  sued  on  was  executed 
more  than  ten  years  prior  to  the  institution  of  the  action.  The 
cases  of  Ledbetter  v.  Ledhetter 3  and  of  Colin  v.  Lehman 4  are  in 
line  with  the  above,  in  which  cases  it  is  expressly  ruled  that 
traverses  and  answers  in  avoidance  may  go  together  when  not 
inconsistent.5  There  is  one  case  in  which,  a  suit  being  brought 
to  enforce  a  vendor's  lien  upon  land,  the  legal  title  to  which  the 
vendor  retained  in  himself,  defendant  pleaded  the  statute  of 
limitations  and  also  pleaded  that  he  had  made  full  payment  and 
had  demanded  a  deed,  but  that  the  vendor  had  refused  to  deliver 
one,  the  answer  concluding  with  a  prayer  for  general  relief.  It 
was  there  held  that  this  latter  plea  and  prayer  constituted  a 
waiver  of  the  plea  of  the  statute.6 

§  708,  Duty  of  legal  representative  to  plead  the  statute. — 
An  administrator  is  not  bound  to  plead  the  general  statute  of 
limitations,  but  he  is  bound  to  plead  the  statute  especially  appli- 

1 38  App.  280.  both  a  cause  of  action  and  the  suing 

2  41  App.  203.  out  of  process  within  the  period  of 

3  88  Mo.  60.  limitation.  Slocum  v.  Riley,  145  Mass. 

4  93  Mo.  574.  370.    This  is    equivalent  to  holding 

5  In  Massachusetts  (which,  however,  that  the  plea  of  the  statute  does  not 
is  not  a  code  state)  it  has  been  held  confess  the  cause  of  action. 

that  if  the  statute  is  pleaded  as  a  bar,        6  Adair  v.  Adair,  78  Mo.  G30. 
the  burden  is  on  the  plaintiff  to  show 


§§  709-712.]-  FOREGOING    KTTLES    APrLIED.  371 

cable  to  suits  against  him  in  his  representative  capacity.1  And 
if  the  record  does  not  show  that  he  in  some  way,  by  oral  plea  or 
otherwise,  raised  the  defense  that  the  claim  presented  against  the 
estate  was  barred  by  the  general  statute  of  limitation,  he  will  be 
held  to  have  waived  it.2  In  pleading  the  special  statute  he  must 
aver  the  fact  that  notice  of  letters  has  been  given,  and  of  the  time 
when  such  notice  was  given.3  A  plea  in  the  following  language 
has  been  held  sufficient :  "  Defendant  denies  that  plaintiff  is  en- 
titled to  judgment  on  said  note,  because  more  than  three  years 
had  elapsed  since  the  granting  of  letters  and  notice  aforesaid 
when  this  suit  was  brought."4 

§  709.  Pleading  foreign  statute  of  limitations. —  The  ques- 
tion as  to  pleading  the  statute  of  limitations  of  a  sister  state  is 
discussed  in  Williams  v.  St.  Louis  <&  S.  F.  R.  Co.,5  and  in  Lyman  v. 
Campbell* 

§  710.  Mode  of  pleading  the  statute  of  limitations. —  The 
plea  should  always  refer  to  the  commencement  of  the  proceed- 
ings supposed  to  be  barred,  and  not  to  any  subsequent  date.7  A 
plea  alleging  that  suit  was  not  brought  within  three  years,  etc., 
after,  etc.,  is  bad;  it  should  allege  that  the  cause  of  action  had 
accrued  more  than  three  years  before  suit  was  brought.8  In  an 
action  against  an  administrator  the  answer  set  up  the  statute 
in  these  words:  "Defendant  denies  that  plaintiff  is  entitled  to 
judgment  on  said  note,  because  more  than  three  years  had  elapsed 
since  the  granting-  0f  letters  and  notice  aforesaid  when  this  suit 
was  brought."     This  was  held  a  sufficient  plea  of  the  statute.9 

§  711.  A  defendant  when  basing  his  defense  in  whole  or  in  part 
upon  the  statute  of  limitations  must  set  out  in  his  answer  the 
particular  period  of  limitation  which  he  chooses  to  invoke,  and 
he  will  not  be  permitted  to  avail  himself  of  any  other.10  If  the 
answer  sets  up  the  bar  of  five  years,  it  cannot  be  held  to  consti- 
tute a  plea  of  a  bar  of  ten  years.11 

§  712.  Pleading  contributory  negligence. — Contributory  neg- 
ligence is  a  matter  of  defense,  and  plaintiff  need  not  allege  nor 

1  Rev.  Stat.  1899,  sees.  184,  185  and  These  two  cases  are  considered  in 
189;  Stiles  v.  Smith,  55  Mo.  363.  §  185,  ante. 

2  Carder  v.  Primm,  47  App.  301.  7  Lincoln  v.  Thompson,  75  Mo.  613. 

3  Wiggins  v.  Lovering,  9  Mo.  262;        8  Finney  v.  State,  9  Mo.  227. 
Stiles  v.  Smith,  55  Mo.  363.  9  Richardson  v.  Harrison,  36  Mo.  96. 

4  Richardson  v.  Harrison,  36  Mo.  96.       10  Harper  v.   Eubank,  32  App.  258; 
6 123  Mo.  573.  Murphy  v.  De  France,  105  Mo.  53. 

«  34  App.  213.  "  Hunter  v.  Hunter,  50  Mo.  445. 


372  THE    ANSWER.  [§  713. 

prove  that  ho  was  without  fault.1  It  is  a  defense  to  be  pleaded 
and  proved  by  the  defendant;2  it  is  a  matter  of  defense,  and  docs 
nol  go  in  mitigation  of  damages.3  If  it  is  not  pleaded  by  the  de- 
fendant, the  question  of  its  existence  should  not  be  submitted  to 
the  jury  as  an  issue  of  fact.4  And  the  rule  is  the  same  even 
though  the  petition  contains  an  allegation  that  plaintiff  was  in- 
jured without  any  fault  on  his  part  and  the  answer  denies  the 
averment.5 

§  713.  Extent  of  the  rule. —  An  exception  to  the  rule  arises 
where,  in  an  action  founded  on  defendant's  negligence,  the  evi- 
dence introduced  by  the  plaintiff  shows  that  his  own  negligence 
directly  contributed  to  produce  the  injury.  In  such  case  the 
plaintiff's  evidence  disproves  his  own  case  and  he  cannot  recover, 
notwithstanding  defendant  does  not  plead  his  contributory  negli- 
gence. If,  however,  the  evidence  falls  short  of  showing  that 
plaintiff's  negligence  directly  contributed  to  the  injury,  and  the 
question  of  fact  is  one  which  might  be  decided  either  way,  it 
cannot  be  availed  of  as  a  defense  unless  it  has  been  pleaded.6  In 
other  words,  the  contributory  negligence  of  plaintiff  does  not, 
unless  set  up  in  defendant's  answer,  form  a  separate  issue,  and  it 
is  not  to  be  considered  unless  an  unavoidable  inference  of  con- 
tributory negligence  arises  out  of  the  evidence  adduced  by  the 
plaintiff,  either  upon  the  direct  examination  of  his  witnesses  or 
upon  their  cross-examination.7  If  the  inference  of  contributory 
negligence  does  arise  from  the  plaintiff's  own  testimony,  the  de- 
fendant may  take  advantage  of  it  regardless  of  whether  such 
special  defense  was  pleaded  by  him  or  not.8  In  an  action  by 
an  employee  for  injuries  suffered  while  in  the  employment  of 
defendant,  the  conduct  of  the  plaintiff  in  accepting  the  service 

i  Petty  v.  Hann.  &  St.  J.  R.  Co.,  88  336;  Voegeli  v.  Pickel  Marble  Co.,  49 

Mo.  306;  Hudson  v.  Wabash  W.  R.  Co.,  App.  643. 

101  Mo.  13;  Young  v.  Shiokle  Iron  Co.,  &  Hudson  v.  Wabash  W.  R.  Co.,  101 

103  Mo.  324.  Mo.  13. 

2  Thorpe  v.  Mo.  Pac.  R  Co.,  89  Mo.  «  Schultze  v.  Mo.  Pac.  R  Co.,  32  App. 
650;  Mitchell  v.  Clinton,  99  Mo.  153;  438;  Hudson  v.  Wabash  W.  R  Co.,  101 
Schlereth  v.  Mo.  Pac.  R  Co.,  96  Mo.  Mo.  13. 

009;  Young  v.  Shickle  Iron  Co.,  103  '  Stone  v.  Hunt,  94  Mo.  475;  Buesh- 
Mo.  324;  Voegeli  v.  Pickel  Marble  Co.,  ing  v.  St.  Louis  Gas  Light  Co.,  73  Mo. 
49  App.  643;  Hughes  v.  Chicago  &  219;  Warren  v.  St.  Louis  Mer.  Ex- 
Alton  R  Co.,  127  Mo.  447.  change,  52  App.  157. 

3  McGowan  v.  St.  Louis  Ore  &  Steel  8  Evans  Brick  Co.  v.  St.  Louis  &  S. 
Co..  109  Mo.  518.  F.  R.  Co.,  21  App.  648;  Warmington  v. 

*  Taylor  v.  Mo.  Pac.  R  Co.,  26  App.     Atchison,  T.  &  S.  F.  R  Co.,  46  App.  159. 


.§§  714-717.]  foregoing  rules  applied.  373 

and  continuing  in  it  with  knowledge  of  the  defects,  does  not, 
strictly  speaking,  present  a  question  of  contributory  negligence 
on  his  part,  which,  to  be  available  to  the  defendant,  must  be 
pleaded;  but  the  effect  of  such  conduct,  without  a  further  show- 
ing by  plaintiff,  is  to  free  the  defendant  from  any  negligence  of 
which  plaintiff  has  a  right  to  complain.1 

§  714.  Manner  of  pleading  contributory  negligence.— It  has 
been  seen  that  in  a  petition  a  general  charge  of  negligence  is  not 
sufficient,  but  that  the  facts  which  constitute  the  negligence  must 
be  set  out  with  reasonable  particularity.  The  same  rule  applies 
to  a  plea  of  contributory  negligence  in  the  answer.  It  is  not  suf- 
ficient to  aver  generally  that  the  damages  sustained  by  plaintiff 
were  the  result  of  his  own  negligence  and  want  of  proper  care 
directly  contributing  to  produce  the  injury,  but  the  facts  consti- 
tuting the  contributory  negligence  must  be  set  out  with  reason- 
able certainty.2 

§  715.  Pleading  notice.— A  case  involving  the  method  of 
pleading  notice  will  be  found  in  section  734,  post. 

§716.  Pleading  payment. —  When  payment  is  pleaded  it  is 
not  necessary  to  aver  that  it  was  made  in  lawful  money,  or  to 
aver  what  was  the  medium  of  the  payment.3  An  answer  which 
states  that  the  drawer  of  a  bill  of  exchange  paid  the  proceeds  of 
a  certain  consignment  to  the  indorsee,  but  does  not  state  that  the 
money  was  received  in  payment  of  the  bill,  nor  that  the  bill  was 
in  fact  paid,  is  not  a  sufficient  plea  of  payment.4  If  the  answer 
states  that  defendant  was  summoned  as  garnishee  of  the  plaintiff 
in  an  action  before  another  court,  having  jurisdiction  of  the  par- 
ties and  of  the  subject-matter,  and  that  he  was  by  such  court 
compelled  to  pay  the  debt  to  the  plaintiff's  creditor  and  that  he 
did  so  pay  it,  this  is  a  sufficient  plea  of  payment.5  Where  the 
answer  states  that  defendant  "  paid  the  plaintiff  two  sums  of 
money  and  that  the  last  payment  extinguished  the  note,"  and 
gives  the  dates  and  amounts  of  the  payments,  this  is  sufficient.6 
°  §  717.  Pleading  the  statute  of  frauds.—  The  statute  of  frauds 
is  an  affirmative  defense  which  must  be  pleaded ;  it  is  not  neces- 
sary that  the  petition  should  contain  any  allegations  of  fact  show- 
ing that  the  contract  is  not  invalid  under  the  statute.7     If  the 

Ulynn    v.    Union    Bridge   Co.,  42  4  German  Bank  v.  Mulhall,  8  App. 

App.  529;  Reichla  v.  Gruensf elder,  52  558. 

App#  43.  ■'  Minor  v.  Rogers  Coal  Co.,  25  App.  78. 

2  Harrison  v.  Mo.  Pac.  R.  Co.,  74  Mo.  6  Joy  v.  Cooley,  19  Mo.  645. 

364t  TGist  v.  Eubank,  29  Mo.  248;  Van 

aEnnisv.  Hogan,  47  Mo.  513.  Hour  v.  Nelson,  GO  App.  533;  Wild- 


374.  a nsw  Kit.  [§§  718,  719- 

petition  declares  upon  a  contract,  without  stating  whether  it  is 
in  writing  or  not,  it  will  be  presumed  to  be  in  writing.1  This  is 
true,  at  all  events,  if  the  contract  is  one  which  is  required  by  the 
statute  of  frauds  to  bo  in  writing.2  In  pleading  the  statute  of 
frauds  the  Tacts  relied  upon  to  bring  the  case  within  the  statute 
must  be  set  out.3  The  answer  should  expressly  aver  that  the  con- 
tract was  not  in  writing,  and  should  contain  an  answer  to  the 
other  facts  alleged.4 

§  718.  The  answer  to  an  action  on  an  account  stated. —  If 
defendant  seeks  to  challenge  the  account  stated  on  the  ground 
of  fraud  or  mistake,  he  must  specially  set  forth  the  fraud,  errors 
or  mistakes  complained  of.5 

§  719.  To  actions  on  bills  or  notes. —  In  an  action  by  the 
payee  against  the  maker,  the  answer  does  not  state  a  legal  de- 
fense if  it  avers  that  there  was  a  written  agreement  between  the 
parties  that  if  it  should  not  be  convenient  for  the  maker  to  pay 
the  note  at  maturity  the  payee  would  wait  his  convenience, 
though  the  answer  also  contained  an  averment  that  it  has  not 
been  convenient  to  pay  the  note.6  So  in  Bond  v.  Worley1  it  was 
held  that  an  agreement  to  renewr  the  note  could  not  be  set  up  as 
a  defense.8  The  defendant  cannot  plead  as  a  defense  to  an  action 
on  a  promissory  note  that  he  has  been  injured  by  the  fraudulent 
practices  of  plaintiff  in  another  and  entirely  distinct  transaction.3 
Xor  can  defendant  set  up  the  fraudulent  acts  of  the  parties  to 
the  note  and  a  stranger  thereto,  done  with  a  view  to  defeat  the 
rights  of  the  latter's  creditors.10 

balm  v.  Eobidoux,  11  Mo.  659;  Young  (Rev.  Stat.  1899)  the  damages  arising 

Men's  Christian  Ass'n  v.  Dubach,  82  from  the  breach  of  such  an  agree- 

Mo.  475.  ment  may  be  pleaded  as  a  counter- 

1  Sharkey  v.  McDermott,  91  Mo.  647.  claim,  if  not  as  a  defense  to  the  action, 

-  Gist  v.  Eubank,  29  Mo.  248.  and  that  defendant  would  not  now  be 

3  Dinkel  v.  Gundelfinger,  35  Mo.  172.  required  to  commence  a  separate  ac- 

4  Bean  v.  Valle,  2  Mo.  126.  tion  to  enforce  the  agreement.  For 
5Marmon  v.  Waller,  53  App.  610.  it  is  said  in  Green  v.  Conrad,  114  Mo. 
6  Atwood  v.  Lewis,  6  Mo.  392.  651,  that  it  is  an  underlying  principle 
"  26  Mo.  253.  of  the  doctrine  of  set-off  and  counter- 
6  The  ground  of  these  decisions  is  claim  that  whenever  entire  justice 

that,  while  the  respective  agreements  can  be  done  both  parties  by  an  adjust- 

might  furnish  the  basis  for  a  separate  ment  of  their  mutual  demands,  with- 

action  by  the  defendant  against  the  out  violating  any  of  the  settled  rules 

plaintiff,  they  are  not  pleadable  as  a  of  law,  it  ought  to  be  done, 

defense.    But  I  apprehend  that  under  9  Pratt  v.  Menkens,  18  Mo.  158. 

the  liberal  provisions  of  section  605  10  Moore  v.  Thompson,  6  Mo.  353. 


§§   720-722.]  FOREGOING   RULES    APPLIED.  375 

§  720.  Decisions  as  to  answers  in  actions  on  bills  or  notes. 

An  answer  which  denies  any  knowledge  or  information  sufficient 
to  form  a  belief  as  to  whether  plaintiffs  compose  the  firm  to 
which  the  note  is  made  payable  raises  a  triable  issue.1  Where 
the  defense  is  that  the  note  was  given  for  the  purchase  of  a  tract 
of  land,  and  that  the  vendor  had  no  title  to  such  land,  the  an- 
swer should  show  specifically  the  defect  in  the  title.2  If  the 
defense  interposed  is  that  the  note  was  given  for  a  bet  on  an 
election,  the  answer  must  state  not  only  that  the  election  was 
one  authorized  by  the  constitution  and  laws  of  the  state  or  the 
United  States,  but  what  particular  election  it  was,  between  whom 
pending,  etc.3  In  an  action  brought  by  an  indorsee,  where  the 
petition  alleges  that  the  note  was  duly  executed  and  was  indorsed 
to  plaintiff,  it  is  not  a  sufficient  answer  to  deny  the  ownership  of 
the  note.4  But  if  the  answer  avers  that  the  notes  were  assigned 
to  a  third  person  before  the  commencement  of  the  action,  it  is 
sufficient.5  Where  the  answer  denies  the  indorsement  of  the  note 
to  plaintiff,  alleges  that  the  note  was  obtained  by  fraud  and  that 
the  plaintiff  had  notice  thereof  at  the  time  of  taking  the  note,  it 
tenders  a  material  issue ;  so  also  does  an  answer  which  alleges 
that  the  note  had  been  fraudulently  altered  after  its  delivery.6 

§  721.  Actions  on  bonds.— The  defense  to  an  action  on  an 
administrator's  bond  that  the  trust  funds  had  been  stolen  is  an 
equitable  one,  but  may  be  pleaded  to  the  action  at  law.7  Under 
the  statute  defendant  may  plead  in  bar  payment  of  the  amount 
due  on  the  bond.8 

§  722.  Actions  against  carriers.—  Where  the  action  against 
a  carrier  for  damages  to  goods  shipped  is  based  upon  the  carrier's 
common-law  liability,  defendant  may  set  up  a  special  contract 
limiting  the  measure  of  damages.9  And  the  mere  fact  that  the 
plaintiff's  action  sounds  in  tort  does  not  prevent  the  defendant 
from  setting  up  a  special  contract.10 

1  Wales  v.  Chamblin,  19  Mo.  500.  failure  of  consideration  is  considered 
That  such  an  answer  must  now  be  ac-  in  g  723,  post.  The  reader  should  also 
companied  with  an  affidavit,  see  §694*  consult  §  734,  post.  As  to  pleading 
ante.  fraud  or  illegality  as  a  defense  to  a 

2  Copeland  v.  Loan,  10  Mo.  2GG.  note,  consult  £§  151-160,  700,  701,  ante. 

3  Sybert  v.  Jones,  19  Mo.  80.  7  State  ex  reL  v.  Meagher,  44  Mo.  356. 
*  Bank  v.  Smith,  33  Mo.  364.  s  Rev.  Stat.  1899,  sees.  465,  637. 
■'Thomas  v.  Wash,  1  Mo.  665.  9 Goodman  v.  Missouri,  K.  &  T.  R. 
^Mechanics'    Bank    v.    Fowler,  36    Co.,  71  App.  460. 

Mo.  33.  MOxley  v.  St.  Louis,  K  C.  &  N.  R. 

The  method  of  pleading  want  or    Co.,  65  Mo.  629. 


the  a.nswkk.  [§§  723-720. 

J  723.  Utions  on  contracts.— Where  in  an  action  upon  a 
note  the  answer  alleges  "that  the  said  note  was  made  with- 
out any  consideration  whatever,"  this  sufficiently  raises  the  de- 
fense of  no  consideration.1  Where,  in  an  action  to  enforce  a 
mechanic's  lien,  the  petition  seeks  to  recover  the  reasonable  value 
of  the  work  done  and  the  materials  furnished,  and  plaintiff  relies 
as  a  defense  upon  a  special  written  agreement,  the  answer  should 
out  such  agreement  together  with  the  breaches  of  it,  so  that 
an  int  Eligible  issue  may  be  raised.2 

§  72-1.  On  lost  instrument. —  A  defense  as  well  as  an  action 
may  be  maintained  on  any  instrument  of  writing  notwithstand- 
ing it  has  been  lost  or  destroyed.3 

§  725.  Actions  of  ejectment. —  To  an  action  of  ejectment  in 
the  usual  form,  defendant,  without  interposing  either  a  general 
or  a  special  denial,  set  up  that  plaintiff  claimed  under  a  tax  sale, 
and  that  the  proceedings  under  said  tax  sale  were  invalid  on 
grounds  set  forth  in  the  answer.  It  was  held  that  the  answer 
was  fatally  defective  in  not  averring  that  plaintiff's  title  was 
based  solely  on  the  tax  proceedings.4 

§  726.  Equitable  defense  in  ejectment.—  Under  the  Code 
the  defendant  may  set  up  an  equitable  defense  to  an  action 
of  ejectment,  and  may  set  it  up  either  as  a  simple  defense  or 
accompanied  with  a  prayer  for  affirmative  relief.  If  such  de- 
fense is  set  up  and  there  is  a  trial,  the  judgment  on  it  is  final  and 
conclusive,  unless  it  is  reversed  on  appeal  or  writ  of  error,  and 
may  be  pleaded  in  bar  to  a  subsequent  action  between  the  same 
parties  concerning  the  same  title.  To  constitute  an  equitable 
defense,  the  answer  must  state  facts  which  bring  the  defense 
under  some  head  of  equitable  cognizance.5  It  must  set  forth, 
such  a  state  of  facts  as  would  have  entitled  the  defendant  to 
relief  under  the  former  equity  practice,6  and  it  must  be  set  out 
with  the  same  particularity  that  would  formerly  have  been  nec- 
essary in  a  bill  in  chancery.7     Where  the  action  is  by  heirs,  and 

i  Williams  v.  Mellon,  56  Mo.  262.     A  5  Sampson  v.  Mitchell,  125  Mo.  217. 

case  in  which  the  answer  signally  fails  6  Maguire  v.  Vice,  20  Mo.  429. 

to  state  a  failure  of  consideration  is  7  Carman  v.   Johnson,  20  Mo.    108. 

that  of  Lyman  v.  Campbell,  34  App.  But  that  it  is  not  necessary  to  employ 

213.  the  verbosity  and  fullness  of  detail 

2 Meyer  v.  Broadwell,  83  Mo.  571.  which  were  essential  to  a  good  bill  in 

3  Rev.  Stat.  1899,  sec.  642.  See  §  338,  equity  under  the  former  practice  is 
ante.  apparent,  and  needs  no  citation  of  au- 

4  Caines  v.  Katz,  95  Mo.  333.  thorities. 


§  727.]  FOREGOING   RULES   APPLIED.  377 

the  defense  is  that  the  land  was  sold  by  an  administrator  for  the 
payment  of  the  debts  of  the  deceased  ancestor  of  the  plaintiffs, 
which  sale  was  informal  and  defective,  and  therefore  failed  to 
pass  the  title,  but  the  answer  avers  that  the  purchase-money  was 
used  to  pay  such  debts,  and  that  the  purchaser  has  since  his  pur- 
chase paid  the  taxes  and  made  lasting  and  valuable  improve- 
ments, these  facts  constitute  an  equity  in  favor  of  the  defendant, 
but  do  not  amount  to  an  equitable  estoppel  which  would  bar  a 
recovery  by  the  plaintiffs,  though  they  do  entitle  plaintiffs  to 
an  accounting,  and  to  have  the  sum  found  to  be  due  defendant 
declared  a  lien  on  the  land,  so  that  plaintiffs  shall  not  obtain  pos- 
session until  they  have  paid  the  sum  so  found  to  be  due.  But  it  was 
at  first  held  that  if  the  answer  does  not  contain  a  prayer  for  an  ac- 
counting, and  a  demand  that  the  sum  found  to  be  due  defendant 
should  constitute  a  lien  on  the  land,  it  is  defective.1  In  the  later 
case  of  Sampson  v.  Mitchell,2  the  court  in  division,  citing  the  fore- 
o-oino;  case,  held  that  defendant  could  not  obtain  the  relief  because 
he  had  not  asked  for  it  in  his  answer.  But  in  the  opinion  ren- 
dered by  the  court  in  oanc,  it  is  intimated  that  an  accounting 
might  be  had  and  the  lien  declared,  though  the  answer  does  not 
contain  a  prayer  therefor.  However,  in  reversing  the  case,  the 
court  in  oanc  says  that  it  does  so  in  order  that  defendant  may 
amend  his  answer  so  that  it  shall  contain  a  prayer  for  an  ac- 
counting and  a  lien.3 

§  727.  Actions  on  insurance  policies. —  In  an  action  upon 
an  insurance  policy,  unless  defendant  sets  up  in  his  answer  that 
the  policy  would  not  have  been  issued  if  the  company  had  known 
the  real  state  of  the  facts,  it  does  not  raise  any  issue  as  to  mis- 
representations by  the  assured.4  The  act  of  April  1,  1895,5  re- 
quires an  insurance  company  after  a  loss  to  furnish  to  the  in- 
sured such  blank  forms  of  statements  and  proofs  of  loss  as  it 
desires  to  be  filled  out.     It  is  held  that  the  insurance  company 

1  Sims  v.  Gray,  66  Mo.  613.  rant    an    accounting  and    that    the 

2 125  Mo.  217.  amount  found  to  be  due  the  defend- 

3  The  intimation  contained  in  the  ant  should  be  made  a  charge  upon  the 

case  last  cited  undoubtedly  embodies  land  which  plaintiff  was  seeking  to 

the  correct  rule,  since  it  is  the  well-  recover.     It  would  seem,  therefore,  to 

settled  practice  of  our  courts  to  grant  be  an  idle  mockery  to  refuse  the  re- 

any  relief  which  the  facts  alleged  will  lief  merely  because  defendant   had 

warrant,  whether  such  relief  is  or  is  omitted  in  terms  to  pray  for  it. 

not  specifically  prayed.     In  both  the  4  Christian  v.  Connecticut  Mut.  Life 

cases  just  cited  the  facts  pleaded  by  Ins.  Co.,  143  Mo.  460. 

the  defendant  were  sufficient  to  war-  5  Rev.  Stat.  1899,  sec.  7977. 


THE    ANSWER.  [§  §  728,  729. 

cannot  avail  itself  of  the  defense  that  plaintiff  did  not  furnish 
proofs  of  loss,  unless  the  answer  contains  a  further  allegation 
that,  after  the  company  received  notice  of  the  loss,  it  furnished, 
or  offered  to  furnish,  plaintiff  with  the  necessary  blank  forms, 
and  that  plaintiff  refused  to  receive  such  blanks,  or  at  least  to 
fill  them  out  and  return  them.1  Where  in  an  action  on  a  policy 
of  insurance  the  petition  does  not  allege  that  plaintiff  had  an  in- 
surable interest  in  the  property,  the  fact  that  the  answer  does 
not  aver  that  plaintiff  had  no  insurable  interest  does  not  consti- 
tute an  admission  that  he  had  such  interest.2 

§  728.  Actions  on  judgments. —  The  statute  provides  that  in 
an  action  on  a  judgment,  or  when  a  scire  facias  is  brought  upon 
a  judgment,  the  defendant  may  plead  in  bar  a  payment  of  the 
amount  due  upon  such  judgment.3  In  a  proceeding  by  a  scire 
facias  to  revive  a  judgment,  defendant  may  plead  nul  tiel  rec- 
ord, but  he  cannot  plead  anything  contrary  to  the  sheriff's  re- 
turn, nor  anything  which  he  might  have  pleaded  in  the  original 
action.4  In  an  action  upon  the  judgment  of  a  sister  state,  a  plea 
to  the  jurisdiction  is  insufficient  which  alleges  that  defendant 
was  not  a  resident  of  the  state  in  which  the  judgment  was  ren- 
dered ;  the  averment  should  be  that  defendant  was  not  in  that 
state.5 

§  729.  Actions  between  landlord  and  tenant. —  In  an  action 
on  the  covenants  of  a  lease,  an  answer  which  sets  up  a  surrender 
and  acceptance  of  the  unexpired  term  must  state  that  the  sur- 
render was  accepted  in  discharge  of  the  covenant.6  It  is  not 
sufficient  to  state  merely  that  the  tenant  delivered  up  the  posses- 
sion of  the  premises  to  the  landlord ;  there  must  be  a  further  aver- 
ment that  the  landlord  accepted  the  possession  and  discharged 
the  tenant.7  An  answer  which  sets  forth  that  plaintiff  has  already 
maintained  one  action  against  defendant  predicated  on  the  lease, 
and  that  the  recovery  in  that  action  embraces  a  part  of  the  time 
for  which  recovery  is  sought  in  the  present  action,  constitutes  a 
good  defense.8 

1  Meyer  v.  Insurance  Co.,  73  App.  166.        5  Wilson  v.  Jackson,  10  Mo.  330.    See 

2  Clevinger  v.  Northwestern  Ins.  Co.,    also  §  703,  ante. 

71  App.  73.  6  Thomas  v.  Cox,  6  Mo.  506. 

3  Rev.  Stat.  1899,  sec.  637.  7  Kerr  v.  Clark,  19  Mo.  132. 

*  Jeffries    v.    Wright,  51    Mo.  215;        8  Kerr  v.  Simmons,  82  Mo.  269. 
Simpson  v.  Watson,  15  App.  425;  Ken- 
nedy v.  Bambrick,  20  App.  630. 


§§  730-733.]  FOREGOING   RULES   APPLIED.  379 

§  730.  In  mechanics'  lien  suits.—  A  denial  that  plaintiff's 
claim  constitutes  a  lien  on  the  land  is  sufficient  to  put  in  issue 
the  liability  of  the  land  to  be  charged  with  the  lien ;  but  all  other 
facts  necessary  to  constitute  the  lien  will  be  admitted  unless  they 
are  specifically  denied.1  "Where  the  petiti'on  alleges  that  plaintiffs 
were  the  original  contractors,  and  the  answer  contains  a  denial 
of  that  fact,  but  does  not  set  up  the  limitation  prescribed  by  the 
statute,  defendants  cannot  be  permitted  to  show  that  plaintiffs 
had  only  four  months  in  which  to  bring  their  action,  instead  of 
six  months.2 

§  731.  Actions  for  serTices. —  "Where  the  action  is  by  an  em- 
ployee who  had  been  discharged  before  the  expiration  of  his  term 
of  service,  if  the  defendant  relies  on  the  defense  that  he  was  in- 
duced to  employ  the  plaintiff  by  the  fraud  of  the  latter,  he  must 
so  state  in  his  answer.  If  he  discharged  him  for  improper  con- 
duct, he  must  set  forth  the  facts  showing  what  the  impropriety 
was.  If  the  discharge  was  for  a  failure  by  the  employee  to  do 
the  work  which  he  contracted  to  do,  the  answer  should  state  in 
what  particular  he  failed,  and  it  must  appear  that  the  work  which 
he  failed  to  do  was  such  as  by  his  contract  of  employment  he  was 
required  to  do.3 

§  732.  Actions  for  slander  or  libel. —  In  actions  for  slander 
or  libel  defendant  may  in  his  answer  allege  both  the  truth  of 
the  matter  charged  as  defamatory  and  any  mitigating  circum- 
stances admissible  in  evidence  to  reduce  the  amount  of  the  dam- 
ages; and,  whether  or  not  he  proves  the  justification,  he  may 
give  in  evidence  the  mitigating  circumstances.  Matters  of  justifi- 
cation and  mitigation  must  be  separately  stated.4  Under  this 
section  mitigating  circumstances  may  be  pleaded  and  are  admis- 
sible to  reduce  the  amount  of  the  damages,  but  not  to  defeat  the 
action.5  But  mitigating  circumstances  go  only  to  reduce  the  ex- 
emplary damages,  and  not  the  actual  damages.6 

§  733.  Where  the  answer  admits  the  speaking  of  the  words,  but 
does  not  allege  their  truth,  yet  seeks  to  excuse  their  utterance, 
it  must  specifically  and  with  precision  allege  the  facts  which  are 
claimed  to  excuse  the  defendant  for  uttering  them.  And  if  the 
words  amount  to  a  charge  of  larceny,  it  seems  that  it  should  appear 

1  Fitzpatrick  v.  Thomas,  61  Mo.  515.  5  Trimble  v.  Foster,  87  Mo.  49. 

2Hearne  v.  Chillicothe  &  B.  R.  Co.,  « Callahan  v.  Ingram,  122  Mo.  355, 

53  Mo.  324.  374;  Lewis  v.  Humphries,  64  App.  466, 

3  Sugg  v.  Blow,  17  Mo.  359.  472. 
*  Rev.  Stat.  1899.  sec.  636. 


TEE   ANSWER.  [§  734. 

upon  the  faoe  of  the  answer  that  their  utterance  was  accom- 
panied  by  a  Btatement  of  facts  sufficient  to  show  that  no  larceny 
had  in  fact  been  committed.1  In  order  that  defendant  may 
plead  facts  in  mitigation  of  the  damages,  it  is  neither  necessary 
nor  proper  that  the  answer  should  contain  an  averment  of  the 
truth  of  the  alleged  slanderous  words,  since  if,  in  the  matter 
pleaded  in  mitigation,  defendant  was  required  to  repeat  the 
slander  complained  of,  it  would  be  an  absurd  blending  of  mitiga- 
tion and  aggravation.2  But  an  answer  setting  up  a  justification 
must  confess  the  speaking.  An  answer  merely  stating  that  the 
words  spoken  are  true  is  not  sufficient;  it  should  state  the  facts 
constituting  the  crime  or  offense  imputed,  so  that  an  issue,  either 
of  law  or  of  fact,  may  be  raised.3  In  a  plea  of  justification  to  a 
libel  which  charged  that  a  person  was  thought  no  more  of  than 
a  horse  thief  or  a  counterfeiter,  there  must  be  an  averment  that 
the  defendant  was  guilty  of  horse  stealing  or  counterfeiting;  it 
is  not  sufficient  to  allege  that  he  was  not  thought  any  more  of 
than  a  horse  thief  or  a  counterfeiter.4  Where  the  petition  al- 
leged that  defendant  had  charged  plaintiff  with  having  sexual 
intercourse  with  her  brother  and  that  pregnancy  had  resulted, 
the  plea  in  justification  is  sufficient  if  it  covered  the  charge  that 
she  had  had  the  intercourse.5 

§  73-4.  Action  against  surety. —  Where  a  party  when  sued  on 
a  note  sets  up  the  defense  that  he  signed  the  note  as  a  surety,  he 
must  set  out  the  name  of  his  principal."  If  one  sued  as  surety 
sets  up  the  defense  that  he  had  given  notice  to  the  creditor  under 
the  statute  to  sue  his  principal,7  and  that  the  creditor  had  failed 
to  sue  as  required,  it  need  not  be  averred  that  the  notice  was  in 
writing,  although  the  statute  requires  that  it  shall  be  in  writing.8 
Where  in  an  action  against  the  surety  the  answer  alleged  that 
plaintiff,  well  knowing  that  defendant  was  only  an  indorser  on 
the  note,  extended  the  time  of  payment  without  defendant's  con- 
sent, this  was  held  to  be  equivalent  to  an  averment  that  defend- 
ant had  written  his  name  on  the  back  of  the  note  as  surety  for 
the  maker,  and  that  he  was  discharged  by  the  alleged  extension.9 
Where  the  action  is  upon  the  bond  of  a  public  administrator,  and 
the  surety  alleges  that  he  had  been  discharged  by  an  order  of  the 

1  Trimble  v.  Foster,  87  Mo.  49.  6  Boatman's  Savings  Inst.  v.  Forbes, 

2  Coe  v.  Griggs,  70  Mo.  G19.  52  Mo.  201. 

3  Atteberry  v.  Powell,  29  Mo.  429.  »  Rev.  Stat.  1899,  sees.  4500-4502. 

4  Nelson  v.  Musgrave,  10  Mo.  648.  8  Coats  v.  Swindle,  55  Mo.  31. 

i  wards  v.  Knapp,  97  Mo.  432.  9  Noll  v.  Oberhellman,  20  App.  336. 


§  735.]  FOREGOING   RULES   APPLIED.  381 

probate  court  in  accordance  with  the  provisions  of  section  4510 
et  seq.,1  and  the  answer  avers  that  his  application  for  discharge 
was  made  "  after  due  notice  as  required  by  law,"  and  then  sets 
out  the  record  of  the  proceedings  upon  the  hearing  of  the  appli- 
cation, which  contained  a  recital  that  the  principal  was  present, 
this  satisfies  the  requirements  of  the  law  as  to  notice.2  To  an 
action  on  the  bond  of  a  bank  teller  a  surety  may  properly  plead 
that  when  he  executed  the  bond  the  principal  was  in  the  service 
of  the  bank  as  receiving  teller,  and  that  the  bank  held  him  out 
to  the  sureties  as  a  faithful  officer,  when  in  fact  he  was  then  in 
default  to  the  bank  and  such  fact  was  known  to  the  bank,  but 
was  fraudulently  concealed  from  the  sureties  in  order  to  induce 
them  to  execute  the  bond.  And  the  answer  is  not  vitiated  by 
the  fact  that  it  further  contains  an  allegation  of  certain  eviden- 
tial facts,  which  in  themselves  were  insufficient  to  show  that  the 
bank  knew  of  the  teller's  previous  embezzlement.3 

§  735.  Actions  for  trespass. —  A  plea  of  justification  of  a 
trespass  de  bonis  asportatis  must,  under  the  common  law,  have 
admitted  the  right  of  property  in  the  plaintiff.  And  where  the 
justification  was  that  defendant  took  the  property  as  constable 
in  levying  an  execution,  it  was  not  necessary  to  set  out  the  judg- 
ment in  the  plea,  or  to  show  that  the  execution  followed  the 
judgment,  or  that  the  property  taken  had  been  sold.4  The  same 
rule  would  probably  apply  in  proceedings  under  the  Code.  It  is 
also  held  in  the  above  case  against  constable,  who  had  com- 
mitted a  trespass  in  levying  an  execution,  that  an  allegation  of 
the  petition  that  defendant  detained  and  converted  the  property 
was  mere  matter  of  aggravation,  which  did  not  require  an  an- 
swer. As  possession  without  title  is  sufficient  to  maintain  an 
action  of  trespass,  at  least  as  against  a  wrong-doer,  an  answer 
which  avers  title  in  another  is  bad.5 

1  Rev.  Stat.  1899.  the  means  by  which  the  plaintiff  bank 

2  State  ex  rel.  v.  Nolan,  99  Mo.  569.    acquired  knowledge  of  the  teller's  dis- 

3  Third  Nat.  Bank  v.  Owen,  101  Mo.     honesty. 

558.    It  was  further  decided  in  that        4  Burton  v.  Sweaney,  4  Mo.  1. 
case  that  the  answer  need  not  set  out        5  Richardson  v.  Murrill,  7  Mo.  333. 


CHAPTER  XXVII. 


PLEAS  IN  ABATEMENT. 


736.  The  rule. 

737.  Nature  of  a  plea  in  abatement. 

738.  What  the  plea  must  show. 

739.  Effect  of  the  plea. 

740.  Waiving  matter  of  abatement. 

741.  Joining  a  plea  in  abatement 

with  a  plea  to  the  merits. 


§  743.  Question  of  jurisdiction  must 
be  first  tried. 
744.  The  rule  in  attachment  cases. 

746.  Another  action  pending. 

747.  Cases  explaining  the  rule. 


§  736.  The  rule. —  Under  the  common  law  there  was  a  well 
recognized  distinction  between  pleas  in  bar  and  pleas  in  abate- 
ment. The  general  rule  was  that  whatever  matter  of  defense 
shows  that  plaintiff  can  have  no  cause  of  action  must  be  pleaded 
in  bar;  but  that  which  merely  defeats  the  present  suit,  and  does 
not  conclude  the  plaintiff  from  maintaining  a  suit  upon  the  cause 
stated,  should  be  pleaded  in  abatement.  And  the  Code  has  not 
changed  the  law  in  this  respect.1  If  the  fact  that  a  suit  was 
brought  in  a  county  where  the  defendant  did  not  reside,  and  that 
he  was  served  with  summons  in  the  county  in  which  he  did  re- 
side, were  called  to  the  attention  of  the  court  by  a  timely  plea 
in  abatement,  the  only  effect  of  it  would  be  to  defeat  that  partic- 
ular suit,  and  to  compel  the  plaintiff  to  sue  where  the  defendant 
resided,  or  to  have  summons  awarded  and  served  on  some  de- 
fendant who  did  reside  in  the  county  where  the  suit  was  brought.2 
So,  too,  where  there  is  a  misnomer  of  a  party,  advantage  of  that 
fact  must  be  taken  by  a  plea  in  abatement;  but  the  only  effect 
of  this  is  to  compel  the  plaintiff  to  properly  name  the  party, 
which  he  may  do  by  amendment  in  the  same  suit.3 

§  737.  Nature  of  plea  in  abatement. —  Pleas  in  abatement  are' 
of  a  dilatory  nature.     That  is,  they  do  not  finally  settle  the  right 


1  Kincaid  v.  Storz,  52  App.  564.  Yet, 
as  will  be  seen  hereafter  (see  §  741, 
post),  this  distinction  has  been  de- 
prived of  very  much  of  its  importance 
by  reason  of  the  fact  that  under  the 
present  ruling  of  our  courts  pleas  in 
abatement  and  in  bar  are  to  be  in- 
cluded in  the  same  answer. 


2  Kincaid  v.  Storz,  52  App.  564 
3Hanley  v.  Blanton,  1  Mo.  49; 
Thompson  v.  Elliott,  5  Mo.  118;  Swan 
v.  O'Fallon,  7  Mo.  231;  Martin  v.  Bar- 
ron, 37  Mo.  301 ;  Green  v.  Supreme 
Lodge,  79  App.  179. 


§§  738-740.]  PLEAS    IN    ABATEMENT.  383 

of  the  plaintiff  to  recover  on  bis  cause  of  action,  but  only  go  to 
show  that  be  has  adopted  an  improper  method,  or  the  wrong 
form,  or  that  he  has  selected  the  wrong  time,  in  his  attempt  to 
enforce  his  right,  or  that  in  some  other  technical  respect  he  has 
mistaken  his  remedy  or  has  failed  to  properly  present  his  case. 
As  the  objections  raised  by  a  plea  in  abatement  are  of  a  dilatory 
character,  the  plea  in  abatement  must  be  interposed  in  the  proper 
time  and  manner,  or  the  objections  will  be  waived.1 

§  738.  What  the  plea  must  show. —  Dilatory  defenses,  such 
as  a  plea  in  abatement,  are  not  favored  by  the  courts  and  are  to 
be  strictly  construed.  And  it  is  said  that  such  a  plea  must  give 
the  plaintiff  a  better  writ.  That  is,  it  must  state  specifically,  and 
not  in  general  terms,  what  is  the  defect  which  renders  the  plaint- 
iff's writ  or  his  petition  insufficient.  If,  for  instance,  the  plea  is 
based  upon  a  defect  of  parties,  the  plea  in  abatement  must  state 
precisely  who  should  be  made  parties.  If  the  plea  raises  the  ob- 
jection that  the  plaintiff  has  not  legal  capacity  to  sue,  it  should 
point  out  the  specific  ground  of  the  incapacity.2  In  order  to 
raise  the  objection  that  there  is  a  misjoinder  of  parties  plaint- 
iff, there  must  be  an  objection  in  terms  to  the  petition  on  that 
ground ;  it  is  not  sufficient  that  the  answer  sets  forth  facts  which 
show  that  the  alleged  cause  of  action  of  plaintiffs  who  sue  jointly 
is  not  a  joint  but  a  several  cause  of  action.3  "Where  the  plea  in 
abatement  goes  to  the  jurisdiction  of  the  court  or  officer,  it  is  not 
sufficient  to  allege  that  the  court  or  officer  did  not  have  jurisdic- 
tion, or  that  the  summons  was  insufficient;  the  pleading  must  set 
out  facts  showing  the  lack  of  jurisdiction  or  the  insufficiency  of 
the  summons.4 

§  739.  Effect  of  the  plea.— Where  a  plea  in  abatement  on  ac- 
count of  a  misnomer  is  sustained,  this  does  not  entitle  defendant 
to  have  the  summons  quashed.  As  stated  in  the  preceding  sec- 
tion, defendant  must  give  the  plaintiff  a  better  writ;  and  when 
the  proper  name  is  thus  obtained,  the  court  may  permit  plaintiff 
to  correct  the  name  in  his  petition  and  in  the  summons.  De- 
fendant is,  of  course,  entitled  to  the  accrued  costs.5 

§  740.  Waiving  matter  of  abatement. —  If  in  a  partition  suit 
it  appears  upon  the  face  of  the  petition  that  the  suit  has  not  been 

i  Kincaid  v.  Storz,  52  App.  564  3  Donahue  v.  Bragg,  49  App.  273. 

-'Shockley  v.  Fischer,  21  App.  551.        4  Hopkins  v.  Huff,  67  App.  394. 
An  instance  of  such  a  plea  will  be        5  Green  v.  Supreme  Lodge,  79  App. 

found  in  Montgomery  v.  Tipton,  1  Mo.  179. 
446. 


PLEAS    IN   ABATEMENT.  [_§  741. 

brought  in  the  proper  county,  because  not  brought  in  the  county 
in  which  the  lauds  lie  or  a  majority  of  the  parties  reside,1  defend- 
ant is  not  compelled  to  demur  on  that  ground,  but  may  in  his 
answer  plead  to  the  jurisdiction,  and  he  will  not  be  held  to  have 
waived  the  objection  because  he  failed  to  demur.  And  this  rule 
obtains,  although  the  proceeding  is  brought  in  a  court  which  has 
an  inherent  jurisdiction  over  the  subject-matter,  and  the  only 
question  is  that  of  the  forum.2 

741.  Joining  a  plea  in  abatement  with  a  plea  to  the  mer- 
its.—  Under  the  earlier  decisions  in  this  state  a  plea  in  bar  on 
the  merits  was  held  to  waive  all  matters  of  abatement.3  And 
the  rule  especially  applied  to  actions  brought  by  attachment.4 
Hut  this  rule  no  longer  prevails  even  in  attachment  suits,  for  in 
the  later  cases  it  is  held  that,  as  it  is  contemplated  by  the  Code 5 
that  only  one  answer  shall  be  filed,  and  that  such  answer  shall 
contain  whatever  defense  or  defenses  the  defendant  may  have, 
the  common-law  rule  that  a  plea  in  bar  waives  all  dilatory  pleas, 
or  pleas  not  going  to  the  merits,  is  abrogated.  Therefore  a  plea 
whose  effect  is  only  to  abate  the  suit,  as,  for  instance,  a  plea  of 
non-joinder  of  parties,  may  be  united  in  the  same  answer  with 
matter  in  bar.6  And  defendant  may  plead  to  the  merits  with- 
out foregoing  the  benefit  of  his  plea  to  the  jurisdiction.7  So  far 
lias  this  rule  been  carried  that  it  is  now  held  that  not  only  may 
a  plea  in  abatement  be  joined  in  the  same  answer  with  a  plea  in 
bar,  but  that,  as  only  one  answer  is  allowable,  and  that  must 
contain  all  the  defenses  which  the  defendant  desires  to  set  up, 
he  must  combine  his  plea  in  abatement  with  his  plea  to  the  mer- 
its, and  if  he  pleads  only  one,  and  is  defeated  on  that,  he  can- 
not claim  the  right  to  resort  to  the  other.8  And  this  require- 
ment applies  even  to  a  proceeding  by  quo  warranto}    But  if  a 

1  Rev.  Stat.  1899,  sec.  4374.  Young  Men's  Christian  Ass'n  v.  Du- 

2  Johnson  v.  Detrick,  152  Mo.  243.  bach,  82  Mo.  480,  in  which  Moody  v. 
3Fugate  v.   Glasscock,   7  Mo.   577;    Deutsch,  85  Mo.  237,  is  disapproved. 

Bo  wen  v.  Lazalere,  44  Mo.  383;  Ripp-  The  rule  is  also  followed  in  Cohn  v. 

stein  v.  St.  Louis  Mut.  Life  Ins.  Co.,  Lehman,  93  Mo.  574;  Christian  v.  Will- 

57  Mo.  86.  iams,  111    Mo.   429,   and  Johnson   v. 

4Fordyce  v.  Hathorn,  57  Mo.  120;  Detrick,  152  Mo.  243,  and  by  the  courts 

Audenreid  v.  Hull,  45  App.  202.  of  appeals  in  Roberts  v.  State  Ins.  Co., 

5  Rev.  Stat.  1899,  sees.  596,  604,  605.  26  App.  92;  Mclntire  v.  Calhoun,  27 

6  Little  v.  Harrington,  71  Mo.  390.  App.  513,  and  Houston  v.    Woolley, 

7  Byler  v.  Jones,  79  Mo.  261.     This  37  App.  15. 

last  case  is  cited    and    followed    in        8  State  v.  Vallins,  140  Mo.  523. 


§§  742- 744.]  PLEAS  IN  ABATEMENT.  385 

plea  in  abatement  to  the  jurisdiction  of  the  court  over  the  per- 
son of  defendant  has  been  decided  adversely  to  the  defendant, 
he  cannot,  after  taking  a  change  of  venue,  raise  the  question  in 
the  court  to  which  the  case  is  transferred  by  uniting  in  his  an- 
swer a  plea  to  the  merits  with  a  plea  to  the  jurisdiction,  since 
this  was  such  an  appearance  as  waived  any  objection  to  the  pro- 
cess of  service,  and  admitted  the  jurisdiction  of  the  court  over 
the  person.1 

§  742.  There,  is  one  decision  of  the  supreme  court  which  is  ap- 
parently not  in  harmony  with  those  just  cited.  In  Spillane  v. 
Mo.  Pac.  B.  Co.,2  it  was  apparent  upon  the  face  of  the  petition 
that  the  plaintiff  had  not  legal  capacity  to  sue,  since  he  sued  as 
guardian  of  an  infant  child,  and  there  was  no  averment  that  he 
had  given  bond  as  such  or  that  he  was  legally  qualified.  A  de- 
murrer was  interposed  on  that  ground  but  was  overruled,  and 
defendant  answered  over.  The  court  held  that  by  answering 
over  he  waived  the  plea  in  abatement.  Nothing  is  said  in  the 
opinion  as  to  what  would  have  been  the  effect  if  defendant  had 
included  in  his  answer  an  averment  that  plaintiff  having  failed 
to  give  bond  had  no  authority  to  maintain  the  action.  And  it 
must  be  assumed,  I  think,  in  view  of  the  present  state  of  the  law 
on  this  subject,  that  defendant  might  have  done  so,  and  might 
thus  have  avoided  a  waiver  of  his  ground  of  abatement. 

§  743.  Question  of  jurisdiction  must  be  first  tried. —  If  a 
defense  to  the  merits  is  united  in  the  same  answer  with  a  plea 
to  the  jurisdiction,  the  court  ought  to  settle  the  question  of  juris- 
diction before  permitting  a  trial  on  the  merits.3 

§  744.  The  rule  in  attachment  cases. —  The  above  rule  that 
pleas  in  abatement  may  be  joined  in  the  same  answer  with  pleas 
in  bar  was  originally  held  not  to  apply  to  suits  by  attachment. 
In  the  first  place,  the  statute  apparently  contemplates  that  the  an- 
swer to  the  merits  shall  be  a  separate  pleading  from  that  in  abate- 
ment. Section  406 4  provides  that  defendant  may  file  a  plea  in 
the  nature  of  a  plea  in  abatement,  which  must  be  verified,  and 
which  puts  in  issue  the  truth  of  the  matter  alleged  in  the  affida- 
vit on  which  the  attachment  is  sued  out.  Section  407 4  provides 
for  a  trial  of  this  plea  in  abatement,  and  it  further  provides  that 
after  the  finding  on  this  issue  there  shall  be,  or  at  least  may  be, 

1  Baisley  v.  Baisley,  113  Mo.  544.  3  Byler  v.  Jones,  79  Mo.  261;  Thomp- 

2  111  Mo.  555.  son  v.  Bronson,  17  App.  456. 

4  Rev.  Stat.  1899. 
Mo.  Code  Pl.— 25 


386  PLEAS    IN    ABATEMENT.  [§  745. 

a  trial  on  the  merits.  In  1 852,  shortly  after  the  adoption  of  the 
( lode,  the  quest  ion  was  raised  whether  the  plea  in  abatement  and 
the  plea  to  the  merits  could  properly  be  joined  in  the  same  plead- 
ing- by  defendant,  and  it  was  held  that  it  could  not  be  done.1  It 
was  also  held  in  that  case  that  by  filing  a  plea  to  the  merits  at 
the  same  time  with  the  plea  in  abatement  the  latter  plea  was 
waived.  In  Fordyce  v.  Hathorn2  this  decision  was  followed,  that 
being  a  case  of  attachment  under  the  landlord  and  tenant  act; 
and  it  was  also  followed  by  the  St.  Louis  court  of  appeals  in  Au- 
denreid  v.  Hull*  and  by  the  Kansas  City  court  of  appeals  in 
ILnnjlihindv.  Dent,4  and  as  late  as  1897  in  State  exrel.  v.  Hopper!' 
But  this  position  has  now  been  abandoned.  In  a  case  decided 
by  the  supreme  court  as  early  as  1880,6  that  court,  in  passing 
upon  the  general  question  whether  pleas  in  abatement  might  be 
joined  in  the  same  answer  with  pleas  in  bar,  and  holding  that 
they  might  be,  expressly  overruled  Fordyce  v.  Hathorn,1  though 
the  Little  case  was  not  one  brought  by  attachment;  and  yet  it  is 
impliedly  stated  in  the  opinion  that  the  earlier  case  of  Cannon 
v.  MeManus 8  was  properly  decided.  But  the  question  must  now 
be  considered  settled  by  the  decision,  in  1895,  of  the  case  of 
Coombs  Commission  Co.  v.  Block,9  where  Barclay,  J.,  reviews  the 
authorities,  and  declares  the  law  to  be  that  there  is  no  sound 
distinction  or  difference  observable  in  this  regard  between  actions 
begun  by  ordinary  summons  and  those  having  an  attachment 
feature.  "We  can  discern  no  substantial  ground,"  he  says, 
"upon  which  to  maintain  a  distinction  between  a  plea  to  abate 
an  attachment  and  a  plea  of  matter  intended  to  abate  an  ordi- 
nary civil  action,  with  respect  to  the  right  to  plead  the  same 
without  thereby  waiving  the  right  to  defend  upon  the  merits 
also.  The  reasons  which  permit  the  one  under  our  system  of 
pleading  should  likewise  permit  the  other."   (p.  676.) 

§  745.  It  can  therefore  be  stated  as  the  law  of  Missouri  that  in 
all  cases  a  plea  in  abatement  may  be  joined  in  the  same  answer 
with  a  plea  in  bar;  and  it  would  follow  from  the  reasoning  of 

'  Cannon  v.  McManus,  17  Mo.  345.  Craig,  47  Mo.  90;  McDonald  v.  Fist,  60 

z  57  Mo.  120.  Mo.  172. 

»  45  App.  202.  e  Little  v.  Harrington,  71  Mo.  390. 

<52  App.  237.  7  57  Mo.  120. 

&72  App.  171.     The  following  decis-        817  Mo.  345. 
ions  of  the  supreme  court,  too,  ex-        9 130  Mo.  668. 
pressly  affirm  the  doctrine:  Green  v. 


§§  746-74S.]  PLEAS   IN   ABATEMENT.  387 

the  more  recent  decisions  that  the  two  pleas  must  be  set  forth  in 
the  same  pleading.1  Even  when  the  rule  was  otherwise,  it  was 
so  far  modified  in  attachment  suits  that  if  the  defendant  filed  a 
plea  in  abatement  and,  the  plea  having  been  overruled  and  the 
ruling  duly  excepted  to,  he  then  pleaded  to  the  merits,  he  did 
not  lose  the  benefit  of  his  plea  in  abatement.2 

§  746,  Another  action  pending, —  One  of  the  grounds  men- 
tioned in  our  statute  for  abating  a  suit  is  that  there  is  another 
action  pending  in  this  state  between  the  same  parties  for  the 
same  cause  of  action.3  If  the  answer  sets  up  the  pendency  of 
another  action,  the  statements  as  to  the  two  actions  must  be  set 
out  with  precision,  so  that  the  court  may  see  upon  the  face  of 
the  answer  that  the  two  actions  are  between  the  same  parties 
and  for  the  same  cause  of  action.4 

§  747.  Cases  explaining  the  rule. —  The  pendency  of  a  suit  to 
foreclose  a  mortgage  for  the  non-payment  of  one  instalment  of 
the  note  secured  thereby  will  not  abate  a  subsequent  suit  to  fore- 
close the  same  mortgage,  based  upon  the  non-payment  of  the 
next  instalment  of  the  same  note.  The  causes  of  action  are  as 
separate  and  distinct  as  they  would  be  if  they  were  founded  on 
two  separate  notes.5  While  a  suit  for  partition  was  pending  in 
one  court,  another  petition  for  partition  of  the  same  land  was 
filed  in  a  different  court,  and  the  latter  proceeding  was  prose- 
cuted to  final  judgment.  Afterwards  a  judgment  of  partition 
was  rendered  in  the  first  suit.  In  the  trial  of  a  subsequent  cause 
an  attempt  was  made  to  impeach  the  judgment  in  the  second  suit 
on  the  ground  that  the  first  suit  was  pending  at  the  time,  and  it 
was  held  that  such  an  objection  could  only  be  made  by  a  plea  in 
abatement  filed  in  the  second  suit,  and  could  not  be  collaterally 
taken  advantage  of  in  a  subsequent  cause.6 

§  748.  If  the  plea  of  another  suit  pending  between  the  same 
parties  for  the  same  cause  of  action  is  set  up  as  a  defense,  plaint- 
iff may  dismiss  the  first  one  and  proceed  with  the  second ;  and 
the  fact  of  such  a  dismissal  may  be  set  up  in  a  reply,  or  even  in 
an  amended  reply.7     While  the  fact  that  another  suit  has  been 

1In    Coombs    Commission    Co.    v.  3  Rev.  Stat.  1899,  sec.  598,  subd.  3,  tc- 

Block,  130  Mo.  608,  it  is  held,  however,  gether  with  sec.  602. 

that  the  defendant  in  an  attachment  4  Bowles  v.  Voss,  3  App.  571. 

suit  is  not  bound  to  plead  to  the  merits  5  Jacobs  v.  Lewis,  47  Mo.  344. 

until  his  plea  in  abatement  is  disposed  6  Bernecker  v.  Miller,  44  Mo.  102. 

of,  although  he  may  do  so  if  he  desires.  7  Warder  v.  Henry,  117  Mo.  530. 

2  Norvell  v.  Porter,  62  Mo.  309. 


"•VS  PLEAS   IN   ABATEMENT.  [§  748. 

brought  in  this  state  by  the  same  plaintiff  against  the  same  de- 
fendant for  the  same  cause  of  action,  and  that  such  suit  is  still 
pending,  constitutes  a  ground  for  abating  the  second  suit,  yet  the 
subject-matter  of  such  pending  suit  may  be  pleaded  as  a  set-off 
by  the  plaintiff  therein,  if,  during  its  pendency,  he  is  sued  by  his 
adversary,  provided  the  subject-matter  of  the  first  suit  is  such  as 
to  constitute  under  the  statute  a  proper  subject  of  set-off  in  the 
second  suit;  and  if  judgment  has  been  rendered  in  the  first  suit 
that  judgment  may  be  set  off  in  the  second.1 

iGunn  v.  Todd,  21  Mo.  303. 


CHAPTER  XXVIII. 


THE  REPLY. 


749.  The  statutory  provisions. 

750.  When  a  reply  is  required. 

751.  Demurrer  or  reply. 

752.  Curing  defect  in  petition. 

753.  Failure  to  file  reply. 

754.  What  is  new  matter. 

756.  What  is  new  matter  —  Illustra- 
tions. 

759.  The  denial 

760.  Forms  of  denial  which  are  in- 

sufficient. 

761.  General  or  special  denial. 

763.  Pleading  new  matter  in  reply. 

764.  Defective  pleading  of  new  mat- 

ter. 

765.  Pleading  new  matter  —  Fraud. 

766.  Reply  to  counter-claim. 


§  767.  Alleging  facts  occurring  subse- 
quent to  suit. 

768.  Departure. 

769.  Decisions  illustrating  the  rule 

as  to  departure. 

771.  How  the  objection  of  a  depart- 

ure is  raised. 

772.  Departure — Praying  additional 

or  different  relief. 

773.  Departure  —  Character  of  suit 

not  changed. 

774.  Departure — Claiming  addi- 

tional damages. 

775.  Departure  —  Cases  in  which  the 

question    has    been    passed 
upon. 


§  749.  The  statutory  provisions. —  Where  the  answer  con- 
tains new  matter,  plaintiff  must  reply  to  such  new  matter  within 
such  time  as  the  court  by  rule  or  otherwise  shall  require,  deny- 
ing generally  or  specifically  the  allegations  controverted  by  him, 
or  any  knowledge  or  information  thereof  sufficient  to  form  a  be- 
lief; and  he  may  allege  in  ordinary  and  concise  language,  and 
without  repetition,  any  new  matter,  not  inconsistent  with  the 
petition,  constituting  a  defense  to  the  new  matter  in  the  answer.1 
If  the  answer  contains  a  statement  of  new  matter,  and  plaintiff 
fails  to  reply  or  demur  to  it  within  the  time  prescribed  by  the 
rule  or  order  of  court,  such  judgment  must  be  rendered  as  de- 
fendant is  entitled  to  upon  the  new  matter  stated  in  his  answer; 
and,  if  necessary,  a  writ  of  inquiry  of  damages  may  issue.2  De- 
fendant may,  within  three  days  after  the  reply  is  filed,  demur  to 
the  new.matter  in  it;3  but  if  he  does  not  demur  to  it,  the  new 
matter  in  the  reply  is  to  be  deemed  controverted  by  the  defend- 
ant as  upon  a  direct  denial  or  avoidance.4     Under  the  above  sec- 


i  Rev.  Stat.  1899,  sec.  607. 
2  Rev.  Stat.  1899,  sec.  60a 


» Rev.  Stat.  1899,  sec.  607. 
4  Rev.  Stat.  1899,  sec.  628. 


390  the  reply.  [§§  750-752. 

tion1  as  it  now  stands,  plaintiff  may  reply  generally,  or  he  may 
assert  a  want  of  knowledge  or  information  sufficient  to  form  a 
belief;  but  this  last  clause  of  the  section  has  been  in  force  only 
since  1875.- 

^  750.  When  a  reply  is  required.— A  reply  is  required  only 
when  there  is  in  the  answer  a  statement  of  new  matter  consti- 
tuting a  defense  or  a  counter-claim.3  If  the  averments  of  the 
answer  are  but  denials  of  the  allegations  of  the  petition,  no  reply 
is  required.1  If  the  answer  avers  conclusions  of  law  from  facts 
already  stated  in  the  petition,  it  does  not  set  up  new  matter  and 
it  does  not  require  a  reply.5  And  the  statement  in  an  answer  of 
a  conclusion  of  law,  as  distinguished  from  matter  of  fact,  is  not 
admitted  by  the  failure  of  plaintiff  to  reply.6  Where  the  new 
matter  in  the  answer  does  not  constitute  a  valid  defense  it  is 
unnecessary  for  plaintiff  to  reply.7 

§  751.  Demurrer  or  reply. —  Section  600 8  provides  that  the 
defendant  may  demur  to  the  whole  petition  or  to  any  one  or 
more  of  the  alleged  causes  of  action  therein,  and  may  answer 
the  residue;  and  section  609 8  provides  that  the  reply  shall  be 
governed  by  the  rules  relating  to  answers,  and  that  demurrers 
to  the  answer  or  reply  shall  be  governed  by  those  relating  to 
demurrers  to  petitions.  If  plaintiff  demurs  to  a  special  defense 
after  he  has  filed  a  reply  to  it,  this  will  be  deemed  a  withdrawal 
of  the  reply  so  far  as  such  defense  is  concerned ; 9  since,  as  has 
already  been  stated,  a  party  cannot  both  demur  and  answer  to 
the  same  part  of  the  pleading  at  the  same  time.10 

§  752.  Curing  defect  in  petition. — Where,  in  an  action  against 
the  drawer  of  a  bill  of  exchange,  the  acceptance  was  a  conditional 
one,  and  the  petition  contained  no  averments  to  the  effect  that 
the  drawer  had  knowledge  that  the  acceptance  was  conditional 
or  had  in  any  way  waived  his  right  to  an  absolute  acceptance, 
the  defect  in  the  petition  is  not  cured  by  reason  of  the  fact  that 
the  reply  contained  an  averment  that,  after  non-payment  of  the 
bill,  the  drawer,  with  knowledge  of  the  acceptance  and  non-pay- 
ment, agreed  to  pay  it.11 

1  Rev.  Stat.  1899,  sec.  607.  For  a  discussion  of  what  is  new  mat- 

2  Watson  v.  Hawkins,  60  Ma  550;  ter,  see  ch.  XXIII;  also  §  763  et  seq.r 
Laws  1875,  p.  106.  post 

3  State  ex  rel.  v.  Rau,  93  Mo.  126.  8Rev.  Stat.  1899. 

*  Jordan  v.  Buschmeyer,  97  Mo.  94.        9  Henley  v.  Henley,  93  Mo.  95.  In  this. 

5  State  ex  reL  v.  Williams,  77  Mo.  463.  case  the  reply  was  a  general  denial. 

6  Dix  v.  German  Ins.  Co.,  65  App.  34.       10  Taber  v.  Wilson,  34  App.  89. 

7  Jamison  v.  Springfield,  53  Mo.  224.       "  Taylor  v.  Newman,  77  Mo.  257. 


§§  753-756.]  THE  REPLY.  391 

§  753.  Failure  to  file  reply. —  Where  a  replication  is  required 
and  none  is  filed,  and  no  default  is  taken  for  want  of  a  reply,  the 
verdict  will  not  be  set  aside  by  reason  of  such  omission ;  if  neces- 
sary, a  reply  by  way  of  a  general  denial  may  be  filed  nunc  pro 
tunc  in  aid  of  the  verdict.1  But  this  rule  does  not  apply  where 
defendant  pleads  a  counter-claim  or  set-off.2 

§  754.  What  is  new  matter. —  The  general  rule  is  that  any 
fact  which  avoids  the  action,  and  which  plaintiff  was  not  bound 
to  prove  in  the  first  instance  in  support  of  it,  is  new  matter;  but 
a  fact  which  merely  negatives  the  averments  of  the  petition  is 
not  new  matter,  and  need  not  be  replied  to.3  If  the  facts  stated 
in  the  answer  show  a  non-liability,  even  though  the  facts  stated 
in  the  petition  are  true,  they  are  new  matter;  but  if  the  facts  so 
stated  simply  show  that  the  facts  stated  in  the  petition  are  not 
true,  then  they  are  not  new  matter  though  stated  in  an  affirma- 
tive form,  and  they  are  admissible  in  evidence  under  a  general 
denial.4  Allegations  of  fact  in  an  answer  which  in  no  degree 
tend  to  overcome  the  cause  of  action  set  out  in  the  petition  do 
not  constitute  new  matter  requiring  a  reply ;  such  matters  are 
purely  surplusage.5  An  averment  which  is  merely  a  conclusion 
of  law  is  not  new  matter.6 

§  755.  If  the  matter  in  the  answer  is  not  properly  new  matter, 
it  is  not  made  such  by  the  fact  that  a  reply  is  filed  to  it.7 

§  756.  What  is  new  matter  —  Illustrations.— The  following 
cases  will  serve  to  illustrate  what  the  courts  have  considered  new 
matter  in  such  a  sense  as  to  require  a  reply.  Where  the  answer 
sets  up  an  account  of  payments  made  by  a  defendant  to  plaintiff, 
it  has  been  held  that  this  is  a  plea  of  payment,  that  it  is  not  new 
matter  and  is  not  confessed  by  a  failure  to  file  a  reply.8  But  in 
Ennis  v.  Hogcm*  suit  was  brought  against  a  stockholder  of  a  dis- 
solved corporation  to  compel  him  as  such  to  satisfy  an  unpaid 

i  Foley  v.  Alkire,  52  Mo.  317;  Heath  5  Dix  v.  German  Ins.  Co..  65  App.  34. 

v.  Goslin,  80  Mo.  310;  Turner  v.Butler,  6  State  ex  rel.  v.  Williams,  77  Mo. 

126  Mo.  131.  463.     Consult  also  ch.  XXIII. 

*  Gunn  v.  Todd,  21  Mo.  303.  7  Emmert  v.  Meyer,  65  App.  609. 

3  State  to  use  v.  Williams,  IS  Mo.  210 ;  8  Holzbauer  v.  Heine,  37  Mo.  443.  It 
State  ex  rel.  v.  Rau,  93  Mo.  126;  Nel-  is  doubtful  whether  this  decision  cor- 
son  v.  Wallace,  48  App.  193.  In  this  rectly  states  the  law;  it  is  certainly 
connection  chapters  XXI  and  XXII  the  safest  course  to  reply  to  an  answer 
should  be  consulted,  the  principles  in-  pleading  payment. 

volved  being  the  same.  '•>  47  Mo.  513. 

4  State  ex  rel.  v.  Rau,  93  Mo.  126; 
Blatz  v.  Lester,  54  App.  283. 


392  the  reply.  [§§  757,  758. 

debt  of  the  corporation,1  and  defendant,  after  admitting  the  in- 
solvency and  dissolution  of  the  corporation,  alleged  that  its  stock 
had  been  paid  up  in  full,  and  that  in  addition  thereto  he  had 
paid  corporation  debts  to  an  amount  exceeding  the  total  amount 
of  his  stock.  It  was  there  held  that  this  was  new  matter  which 
required  a  reply.  The  ground  of  the  distinction  as  stated  by  the 
court  is  that  defendant  in  this  latter  case  did  not  aver  payment 
of  the  debt  sued  for,  but  the  payment  of  other  liabilities,  whereby 
his  liability  as  stockholder  had  been  discharged.  So,  too,  where 
the  plea  of  pa3nnent  was  set  up  to  an  action  founded  on  a  judg- 
ment rendered  in  the  state  of  Kentucky,  and  there  was  an  aver- 
ment that  by  the  law  of  that  state  such  a  plea  to  such  a  declaration 
is  good,  this  raises  the  issue  as  to  what  the  law  of  Kentucky  was, 
and  requires  a  reply.2  Where  an  action  is  brought  against  a  firm 
to  recover  a  partnership  debt,  and  one  of  the  partners  sets  up  in 
his  answer  a  dissolution  of  the  partnership  and  payment  of  the 
indebtedness  by  the  other  partner,  alleging  at  the  same  time  that 
the  other  partner  was  on  the  dissolution  accepted  by  plaintiff  as 
the  sole  debtor,  the  answer  contained  such  new  matter  as  must 
be  replied  to.3 

§  757.  A  plea  of  an  accord  and  satisfaction  is  new  matter  and 
requires  a  reply.4  The  plea  of  justification  in  an  action  of  slander 
is  not  onl}'  new  matter,  but  it  goes  to  the  plaintiff's  entire  cause 
of  action ;  if  it  remains  undenied  by  a  reply,  defendant  is  entitled 
to  judgment.5 

§  758.  An  action  was  brought  upon  a  policy  of  insurance  which 
contained  a  condition  that  the  insured  should,  if  requested,  ex- 
hibit to  the  insurer  his  books  and  accounts.  The  petition  con- 
tained an  allegation  that  plaintiff  had  performed  all  conditions 
precedent.  It  was  held  that  this  did  not  include  an  allegation 
that  he  had  complied  with  the  condition  as  to  the  exhibit  of  his 
books,  and  if  the  answer  avers  that  request  was  made  upon  the 
plaintiff  for  the  exhibition  of  his  books,  and  that  he  had  neglected 
or  refused  to  exhibit  them  as  requested,  this  constitutes  new  mat- 
ter which  must  be  replied  to.6  In  another  action  upon  a  policy 
of  insurance  the  petition  alleged  that  plaintiff's  dwelling-house, 
which  was  covered  by  the  policy,  was  totally  destroyed  by  fire. 
The  answer  averred  that  the  house  was  blown  down,  and  that 

1  Rev.  Stat.  1899,  sec.  987.  &  Nelson  v.  Wallace,  48  App.  193. 

2  Hutchison  v.  Patrick,  3  Mo.  65.  6  Mueller  v.  Putnam  F.  Ins.  Co.,  45 

3  Cordner  v.  Roberts,  58  App.  440.  Mo.  84 

4  Robinson  v.  Suter,  15  App.  599. 


§§  759-761.]  THE   REPLY.  393 

the  fire  was  communicated  to  the  materials  from  the  stove.  The 
reply  alleged  that  plaintiff  did  not  know  whether  the  fire  was 
communicated  from  the  stove  or  from  lightning.  It  was  held 
that  the  answer  was  in  legal  effect  a  denial  of  the  allegation  of 
the  petition,  and  did  not  require  a  reply.1 

§  759.  The  denial. —  The  denial  of  new  matter  set  up  in  an 
answer  does  not  limit  the  allegations  of  the  petition ;  the  plaint- 
iff's cause  of  action  is  still  based  upon  the  allegations  of  the  peti- 
tion,2 and  there  is  no  error  in  striking  out  so  much  of  the  reply 
as  has  already  been  embodied  in  the  petition.3  Where  the  answer 
contains  an  averment  that  the  plaintiff  knew  certain  facts,  this 
does  not  tender  an  issue  as  to  the  existence  of  such  facts ;  and  if 
plaintiff  denies  that  he  knew  of  the  existence  of  the  facts,  this 
is  not  by  implication  an  admission  that  the  facts  actually  ex- 
isted.4 

§  760.  Forms  of  denial  which  are  insufficient. —  When  the 
answer  contains  numerous  averments  of  fact  in  several  counts, 
and  the  reply  pleads  specially  to  some  of  these  averments,  and 
then  "denies  each  and  every  allegation  of  the  answer  not  herein 
admitted  or  otherwise  pleaded  to,"  it  is  bad.5  But  such  plead- 
ing cannot  be  considered  a  nullity,  and  if  no  advantage  is  taken 
of  its  defects  before  trial,  it  will  then  be  held  sufficient.6  If  the 
suit  is  to  cancel  a  sheriff's  deed  upon  the  ground  that  it  is  a 
cloud  upon  plaintiff's  title,  and  the  answer  sets  up  new  matter,  a 
reply  is  insufficient  which  denies  "  each  and  every  allegation  and 
statement  therein  which  is  in  any  way  inconsistent  with  the 
allegations  in  the  petition,"  and  "  especially  denies  all  new  mat- 
ter pleaded  "  in  the  answer.7 

§  761.  General  or  special  denial. —  The  questions  whether  a 
denial  should  be  general  or  special,  and  of  what  may  be  shown 
under  a  general  denial,  have  been  fully  considered  in  chapters 
XX  to  XXII,  inclusive;  little  need  be  added  here  to  what  is  said 
in  those  chapters.  As  in  the  case  of  an  answer,  so  in  that  of  a 
reply,  a  mere  general  denial  will  not  permit  the  introduction  by 
a  plaintiff  of  new  matter  in  evidence.8   The  rule  that  an  affirma- 

1  Farrell  v.  Farmers'  Fire  Ins.  Co.,  66  erned   by  the   same    principles,  the 

App.  153.  reader  should  consult  chapters  XX  to 

2Gaty  v.  Clark,  28  App.  332.    See  XXIII,  inclusive,  in  this  connection. 

§  763,  post.  5 Long  v.  Long,  79  Mo.  644;  Collins 

3  West  v.  West,  144  Mo.  119.  v.  Trotter,  81  Mo.  275. 

4  Thomas  v.  Liebke,  13  App.  389.    As  6  Collins  v.  Trotter,  81  Mo.  27"). 
the  denial  in  the  reply  and  the  denial  "  Young  v.  Schoheld,  132  Mo.  650. 
in  the  answer  are  in  the  main  gov-  8  Judy  v.  Duncan,  21  App.  548. 


394  tub  eeplt.  [§§  762,  763. 

tive  defense  must  be  clearly  and  distinctly  set  forth  is  applicable 
to  tbo  reply,  since  under  a  general  denial  of  an  affirmative  de- 
fense set  forth  in  the  answer,  plaintiff  can  only  try  such  ques- 
tions as  are  necessary  to  sustain  defendant's  case.1  Where  the 
allegation  of  tho  answer  was  "  that  plaintiff  without  just  cause 
discharged  the  defendant,"  and  the  reply  was  that  plaintiff  "de- 
nies that  he  discharged  the  defendant  without  just  cause,"  the 
reply  went  to  the  whole  averment  of  the  answer,  and  put  in 
issue  both  the  fact  of  the  discharge  and  its  justice.2  In  an  action 
to  recover  for  injury  to  stock  by  a  railroad  company,  based  upon 
the  failure  of  the  defendant  to  erect  a  fenqe  along  the  line  of  its 
road,  the  answer  alleged  that  plaintiff  had  himself  agreed  to- 
erect  such  fence  and  had  failed  to  do  so,  and  that  it  was  in  con- 
sequence of  his  failure  to  erect  the  fence  that  his  stock  went  on 
the  road.  By  the  replication  plaintiff  denied  that  he  was  bound 
by  any  contract  with  defendant  to  build  the  fence  on  his  own 
land  on  the  line  of  said  railroad  track,  as  stated  by  defendant  in 
its  answer.  It  was  held  that,  while  this  might  be  construed  to 
be  a  negative  pregnant,  yet  where  the  contract  was  thus  col- 
laterally set  up  in  the  pleading,  a  denial  of  the  kind  made  in  the 
reply  was  sufficient  to  require  the  party  setting  up  the  contract 
to  produce  it  on  the  trial,  that  its  terms  might  be  construed  by 
the  court.3 

§  762.  The  petition  stated  a  cause  of  action  for  personal  injuries 
based  upon  the  negligence  of  the  defendant,  and  the  answer  con- 
tained a  general  charge  of  contributory  negligence,  without  set- 
ting out  the  specific  acts  of  negligence  which  were  relied  upon. 
It  was  held  that  this  charge  of  contributory  negligence  was  fully 
met  by  a  general  denial.4  Where  the  defense  of  the  statute  of 
limitations  is  interposed  by  a  defendant,  and  plaintiff  relies  on 
matters  in  avoidance  of  the  plea,  he  must  plead  such  matters 
specially;  he  cannot  give  them  in  evidence  under  a  general  de- 
nial in  his  reply.5  Under  a  general  denial,  plaintiff  will  not  be 
permitted  to  prove  a  waiver  or  an  estoppel.6 

§  763.  Pleading  new  matter  in  reply.— Plaintiff  cannot  re- 
cover on  a  causa  of  action  which  is  stated  only  in  his  reply,  and 

i  Flint  Mfg.  Co.  v.  Ball,  43  App.  504  3  Ells  v.  Pacific  Railroad,  55  Mo.  278. 

SKimberlin  v.  Short,  24  App.   643.  4  Scott  v.  Smith,  133  Mo.  618. 
That  our  courts  s^em  to  be  unwilling  5  Moore  v.  Granby  Mining  &  Smelt- 
to  condemn  the  vice  of  a  negative  ing  Co.,  80  Mo.  88;  Zoll  v.  Carnalian. 
pregnant    has    already  been    stated.  83  Mo.  35. 
See  §s  20.5-207,  540,  543,  ante.  6  Whiteside  v.  Magruder,  75  App.  36 !. 


§§  764,  765.]  the  reply.  395 

not  in  his  petition.1  He  cannot  amend  his  petition  by  a  reply.2 
"Where  in  an  action  of  trespass  defendant  answers  that  he  seized 
the  goods  as  constable  under  an  execution,  and  plaintiff  replies 
that  the  property  seized  was  exempt,  he  being  the  head  of  a 
family,  the  reply  need  not  setup  the  facts  which  constitute  plaintiff 
the  head  of  a  family;3  nor  need  the  reply  allege  that  plaintiff 
was  at  the  time  residing  in  this  state.4 

§  764.  Defective  pleading  of  new  matter.— Defendant  can- 
not take  advantage  of  a  defective  pleading  of  new  matter  in  the 
reply  by  an  objection  at  the  trial  to  the  introduction  of  any  evi- 
dence; he  must  reach  the  defect  by  a  special  demurrer,  or  better, 
by  a  motion  to  strike  out.5 

§  7G5.  Pleading  new  matter  — Fraud.— When  the  action  is 
based  upon  personal  injuries  suffered  by  the  plaintiff,  and  the 
defendant  pleads  a  duly-executed  release,  can  plaintiff  avoid  such 
defense  by  setting  up  in  his  reply  that  the  release  was  procured 
by  fraud?6  In  Girard  v.  St.  Louis  Car  Wheel  Co.,1  this  question 
is  answered  in  the  affirmative ;  and  in  Mateer  v.  Mo.  Pac.  E.  Co.,9 
such  was  the  course  taken.  But  as  the  supreme  court  rested  its 
decision  in  the  case  last  cited  on  the  ground  that  there  was  no 
evidence  of  fraud,  the  question  above  suggested  was  not  noticed. 
However,  in  Hancock  v.  Blackwell?  the  question  was  raised  be- 
fore the  supreme  court  in  lane,  and  it  was  declared  that  plaintiff 
cannot  in  an  action  at  law  reply  fraud  to  an  answer  setting  up  a 
release  of  the  cause  of  action ;  he  must  proceed  in  equity  to  have 
the  release  set  aside;  though  it  was  held  that  he  might  amend 
his  petition,  so  as  to  embrace  a  count  in  equity  for  the  purpose  of 

JStepp  v.  Livingston,  72  App.  175;  best  to  state  the  previous  condition  of 

Crawford  v.  Spencer,  36  App.  78.  the  law,  as  showing  the  reason  which 

2McMahill  v.  Jenkins,  69  App.  279.  led  to  the  adoption  of  the  new  sec- 

Consult  also  the  cases  on  Departure,  tion.  That  section  provides  that  when- 

g  768  et  seq.,  post.  ever   a    release,   composition,  settle- 

3  Duncan  v.  Frank,  8  App.  286.  ment  or  other  discharge  of  the  cause 

4  State  to  use  v.  Hussey,  7  App.  597.  of  action  sued  on  shall  be  pleaded  in 
A  reply  to  a  plea  of  discharge  in  the  answer,  it  shall  be  permissible  to 

bankruptcy  will  be  found  in  §  697,  allege  in  the  reply  any  facts  tending 
note  3.  to  show  that  such  release,  composi- 
s  Ricketts  v.  Hart,  73  App.  647.  tion,   settlement  or  other   discharge 
« The  consideration  of  this  question  was  fraudulently  or  wrongfully  pro- 
is  perhaps  unnecessary  in  view  of  the  cured  from  plaintiff,  and  the  issue 
provisions  of  section  654  (Rev.  Stat,  shall  be  submitted  to  the  jury. 
1899),  which  section  was  enacted  at  746  App.  79. 
the  last  revising  session  of  the  gen-  8 105  Mo.  320. 
eral  assembly.    But  I  have  thought  it  9 139  Mo.  440. 


396  the  RErLT.  [§§  766,  767. 

setting  aside  the  release.  But  when  the  same  case  came  again 
before  the  court  in  banc,  under  the  style  of  Courtney  v.  Black- 
■wdl}  it  was  then  held  by  four  out  of  the  seven  judges  that  the 
issue  of  fraud  in  the  procurement  of  a  release  which  is  set  up  in 
the  answer  may  be  raised  by  the  reply;  and  while  plaintiff  is  at 
liberty  to  anticipate  such  affirmative  defense  of  release  by  em- 
bodying in  his  petition  a  count  setting  up  fraud  in  its  procure- 
ment, and  asking  that  it  be  set  aside  on  account  of  such  fraud, 
he  should  not  be  required  to  take  that  course.  Above  all,  he 
should  not  be  relegated  to  a  separate  bill  in  equity  for  that  pur- 
pose.2 In  fact,  such  was  the  ruling  of  the  supreme  court  in  banc 
in  an  earlier  case,  in  which  there  was  no  dissent.3  In  that  case 
Judge  Robinson,  speaking  for  the  full  bench,  says:  "  It  has  been 
repeatedly  held  in  this  state,  and  in  fact  is  a  general  rule  of 
practice  throughout  the  courts  of  our  country,  that  the  issues 
raised  by  a  reply,  impeaching  the  integrity  of  a  release  pleaded 
by  an  answer  as  having  been  obtained  by  fraud,  might  be  tried 
in  an  action  at  law,  without  a  resort  to  a  court  of  equity  for  a 
cancellation  of  such  release."     (p.  64:6.) 4 

§  766.  Reply  to  counter-claim, —  Since  in  respect  to  a  counter- 
claim or  set-off  defendant  occupies  the  position  of  a  plaintiff,  the 
plaintiff's  reply  is  in  reality  an  answer  to  the  defendant's  counter- 
claim.5 Therefore  where  new  matter  is  set  up  in  the  reply,  which 
is  responsive  to  a  counter-claim  set  up  by  defendant,  and  which 
states  matters  relevant  to  meet  the  matter  stated  in  the  counter- 
claim, it  cannot  be  regarded  as  a  departure."  A  reply  may  set 
up  a  claim  by  plaintiff  against  one  of  several  defendants,  in  addi- 
tion to  the  joint  claim  set  up  in  the  petition  against  all  the  de- 
fendants, when  such  defendant  has  set  up  as  a  counter-claim  a 
several  demand  against  the  plaintiff;  and  such  a  reply  does  not 
constitute  a  departure.7 

§  767.  Alleging  facts  occurring  subsequent  to  suit. —  An 
answer  or  replication  may  allege  facts  which  have  occurred  since 

1 1 50  Mo.  245.  lease,  or  the  same  end  must  be  reached 

2  150  Mo.,  p.  278.  by  a  separate  count  in  the  petition. 

3  Hornuth  v.  Metropolitan  Street  R.  An  examination  of  the  Homuth  case 
Co.,  129  Mo.  629.  will  show  that  it  is  an  authority  di- 

4  This  case  is  cited  in  Hancock  v.  rectly  to  the  contrary. 
Blackwell,  139  Mo.  440,  455,  as  author-  5  Henderson  v.  Davis,  74  App.  1. 
ity  for  the  proposition  that  fraud  can-  6  Coombs  Com.  Co.  v.  Block,  130  Mo. 
not  be  pleaded  in  the  reply,  but  that  608. 

there  must  either  be  an  original  pro-        7  Mortland  v.  Holton,  44  Mo.  58. 
ceeding  in  equity  to  set  aside  the  re- 


§§  768,  769.]  the  reply.  397 

the  institution  of  the  suit.1  This  section  was  not  intended  to 
change  the  office  of  a  reply,  which  is  that  of  a  denial  to  the 
matter  set  up  in  the  answer,  or  a  confession  and  avoidance  of  it ; 
plaintiff  must  recover  upon  the  cause  of  action  stated  in  his  peti- 
tion, and  cannot  recover  upon  one  stated  for  the  first  time  in  his 
reply.2  Nor  does  the  section  change  the  equitable  rule  that  in  a 
suit  in  equity  the  petition  may  be  so  amended  as  to  set  up  a  new 
state  of  facts  arising  subsequent  to  the  commencement  of  the 
suit,  which  may  entitle  plaintiff  to  the  relief  he  seeks.  And  if 
in  an  equitable  proceeding  plaintiff's  recovery  is  based  upon  facts 
which  have  developed  since  the  commencement  of  the  suit,  and 
such  facts  are  set  up  in  the  reply  and  are  within  the  general 
scope  of  the  petition  and  the  relief  prayed  for,  the  judgment  can- 
not be  reversed  because  of  the  stage  of  the  proceedings  at  which 
such  facts  are  pleaded.3 

§  768.  Departure. —  A  departure  is  an  abandonment  of  the 
original  cause  of  action  for  another.4  The  offense  is  said  to  oc- 
cur  when  in  any  pleading  the  party  deserts  the  ground  he  took 
in  his  last  antecedent  pleading  and  resorts  to  another.5  New 
matter  in  a  reply,  which  constitutes  a  defense  to  new  matter  in 
the  answer,  is  not  a  departure.6  A  reply  which  only  supplies  a 
necessary  averment  omitted  from  the  petition  is  not  a  departure.7 

§  769.  Decisions  illustrating  the  rule  as  to  departure. — 
"Where  the  answer  contains  a  statement  of  new  matter  constitut- 
ing a  defense  to  the  petition,  and  the  reply  sets  out  new  matter 
as  a  defense  to  the  new  matter  in  the  answer,  if  such  new  mat- 
ter stated  in  the  reply  is  not  inconsistent  with  the  allegations  of 
the  petition  it  is  not  a  departure,  and  is  allowable.8  The  case 
was  one  where  plaintiff  sued  for  certain  rock,  which  the  petition 
alleged  to  be  situated  on  certain  real  estate  belonging  to  defend- 
ant, and  which  it  was  charged  that  defendant  had  converted  to 
his  own  use.  The  answer  was  a  general  denial,  and  a  special 
defense  to  the  effect  that,  when  defendant  bought  the  real  estate, 
the  rock  in  question  was  a  part  of  it  by  reason  of  having  been 
built  into  and  annexed  as  the  foundation  of  a  certain  building 
erected  thereon.    To  this  new  matter  plaintiff  replied,  admitting 

1  Rev.  Stat.  1899,  sec.  618.  6  Herf    Chem.    Co.    v.   Lackawana 

2  Crawford  v.  Spencer,  36  App.  78.  Line,  70  App.  274 

3  Crawford  v.  Spencer,  36  App.  78.  7Ricketts  v.  Hart,  73  App.  647.  But 
See  in  this  connection  §  763,  ante.  see  §  763,  ante.    As  to  setting  up  a 

4  Mortland  v.  Holton,  44  Mo.  58.  waiver  in  the  reply  consult  §  107,  ante. 

5  Cravens  v.  Gilliland,  73  Mo.  524  8  Rich  v.  Donovan,  81  App.  184 


SOS  THE  REPLY.  [§  770. 

the  purchase  by  defendant  and  the  fact  that  the  rock  was  "built 
into  the  foundation  of  the  building;  but  the  reply  proceeded  to 
aver  that  before  the  purchase  of  the  realty  by  defendant  the  rock 
had  been  furnished  to  the  person  who  contracted  to  erect  the 
buildings  for  the  then  owner  of  the  property ;  that  not  having 
paid  for  the  rock  so  furnished,  plaintiff  had  filed  a  mechanic's 
lien  against  the  property;  that  plaintiff  was  induced  to  release 
said  lien  upon  the  promise  by  the  then  owner  that  if  plaintiff 
would  leave  the  rock  there  until  the  then  owner  should  sell  the 
premises  he  should  be  compensated  for  the  rock,  and  that  plaint- 
iff released  the  lien  relying  upon  this  promise,  of  which  the  de- 
fendant had  notice.  It  was  held  that  the  reply  was  proper  and 
constituted  no  departure  from  the  petition. 

§  770.  There  is  also  an  interesting  decision  of  the  supreme 
court  which  involves  the  same  principle.  Plaintiff  brought  a 
plain  action  in  ejectment.  Defendant  pleaded  a  general  denial, 
and  also  filed  a  cross-bill  in  which  he  set  up  certain  deeds  of 
trust  in  which  he  was  the  beneficiary,  the  execution  thereafter 
of  a  warranty  deed  to  him  by  the  grantor  in  the  deeds  of  trust, 
accompanied  by  a  release  of  the  deeds  of  trust  by  defendant,  the 
purchase  of  a  part  of  the  land  by  defendant  under  a  judgment 
against  the  grantor,  the  subsequent  setting  aside  of  the  warranty 
deed  by  the  court,  and  the  purchase  by  plaintiff  of  a  part  of  the 
land  under  another  judgment  against  the  grantor  in  the  deeds 
of  trust.  The  cross-bill  further  averred  that  defendant  had  been 
in  the  possession  of  the  land  since  the  date  of  the  warranty  deed 
to  him,  and  that  plaintiff  had  not  offered  to  pay  the  debt  secured 
by  the  deeds  of  trust.  The  prayer  of  the  cross-bill  was  that  the 
satisfaction  of  the  deeds  of  trust  be  set  aside,  and  that  a  lien 
be  given  defendant  on  the  land  for  the  taxes  paid  and  the  im- 
provements made  by  him.  To  this  equitable  defense  plaintiff 
replied  that  the  deeds  of  trust  set  up  by  defendant  had  been  ex- 
tinguished,^/1^, by  the  fraud  of  defendant  in  accepting  the  war- 
ranty deed  and  releasing  the  deeds  of  trust  on  the  margin  of  the 
record;  second,  by  the  merger  of  the  qualified  title  acquired 
under  the  deeds  of  trust  into  an  absolute  title  to  so  much  of  the 
land  as  defendant  had  purchased  at  the  sheriff's  sale  under  exe- 
cution; and,  third,  by  payment  of  the  debt  secured  by  the  deeds 
of  trust,  since  the  part  of  the  land  which  plaintiff  was  not  seek- 
ing to  recover  by  his  action  in  ejectment  was  of  a  value  amply 
sufficient  to  pay  the  entire  debt  thus  secured.  It  was  held  that 
this  reply  was  proper  and  germane  to  the  issues,  and  that  the 


§§  771-774.]  THE  REPLY.  399 

equitable  defense  set  up  in  the  answer,  and  the  equities  set  up  in 
the  reply,  should  first  be  tried  and  decided  by  the  court  before 
plaintiff's  action  at  law  for  possession  of  the  property  could  be 
considered.  Plaintiff  was  entitled  to  have  all  these  questions 
settled  in  the  one  proceeding,  and  was  not  to  be  compelled  to 
resort  to  a  separate  proceeding  in  equity  for  the  relief  to  which 
he  was  entitled.1 

§  771.  How  the  objection  of  a  departure  is  raised. — If  a  reply 
does  constitute  a  departure,  it  can  only  be  taken  advantage  of  by 
a  special  demurrer  or  by  a  motion  to  strike  out;  if  defendant  goes 
to  trial  without  taking  either  of  these  courses,  he  waives  the  ob- 
jection.2    It  follows  that  a  departure  is  cured  by  verdict.3 

§772.  Departure  —  Praying  additional  or  different  relief. 
"Where  to  an  action  in  ejectment  defendant  answers  that  the 
plaintiff  claims  under  a  trustee's  deed,  which  deed  was  void  for 
the  reason  that  the  trustee  had  failed  to  follow  the  requirements 
of  the  deed  of  trust,  plaintiff  may  in  his  replication  pray  for  a 
judgment  of  foreclosure  and  a  sale  of  the  land,  and  the  court  may 
properly  render  a  decree  in  accordance  with  such  prayer.4  A 
claim  for  an  instalment  of  rent  which  has  fallen  due  since  the 
commencement  of  the  action  may  be  set  up  in  the  replication.5 

§  773.  Same  —  Character  of  suit  not  changed. —  An  action 
at  law  upon  a  bond  of  an  executor  will  not  be  changed  into  an 
equitable  proceeding  by  reason  of  the  fact  that  the  reply  contains 
a  prayer  for  equitable  relief.6 

§774.  Departure  —  Claiming  additional  damages. —  Under 
section  618,7  which  provides  that  an  answer  or  replication  may 
allege  facts  which  have  occurred  since  the  institution  of  the  suit, 
it  is  proper  to  allege  in  the  reply  any  new  matter  which  merely 
enlarges  the  extent  of  the  relief  sought,  by  stating  a  continuance 
of  the  same  wrong.  Thus,  in  St.  Joseph  Union  Depot  Co.  v.  Chi- 
cago, 12.  I.  <&  Pac.  E.  Co.*  which  was  an  action  to  recover  for 
the  use  and  occupation  of  plaintiff's  depot,  the  petition  prayed 
for  damages  in  the  sum  of  $4,800,  and  it  was  held  that  the  reply 

i  Martin  v.  Turnbaugh,  153  Mo.  172.  3  Mortland  v.  Holton,  44  Mo.  58. 

That  a  reply  to  a  counter-claim  can-  4  White  v.  Rush,  58  Mo.   105.     See 

not  be  regarded  as  a  departure,  see  also  §  770,  ante. 

%  766,  ante.  '->  St.  Joseph  Union  Depot  Co.  v.  Chi- 

That  plaintiff  cannot  amend  his  pe-  cago,  R.  I.  &  Pac.  R  Co.,  131  Mo.  291. 

tition  by  reply,  see  §  763,  n.  2,  p.  395.  6  State  ex  rel.  v.  Jones,  131  Ma  194 

2  Herf  Chem.  Co.  v.  Lackawana  Line,  7  Rev.  Stat.  1899. 

70  App.  274.  8  i3i  Mo.  291. 


400  THE   BEPLY.  [§§  775-777. 

might  properly  enlarge  this  prayer  for  damages,  so  as  to  enable 
plaint  ill'  to  recover  the  sum  of  $3,000  in  addition,  which  had  ac- 
crued as  rental  between  the  filing  of  the  petition  and  the  date 
of  filing  the  reply. 

§  ??5.  Departure  —  Cases  in  which  the  question  has  been 
passed  upon. —  The  following  are  instances  of  rulings  on  tho 
question  of  departure:  In  an  action  on  a  collector's  bond  the 
state  alleged  that  the  collector  had  collected  the  sum  of  $19,478 
which  ho  had  failed  to  pay  over  to  the  state.  The  defendant's 
plea  admitted  that  the  collector  had  received  the  sum  stated  in 
the  declaration  and  averred  that  he  had  paid  the  sum  into  the  state 
treasury,  and  that  this  was  all  the  money  collected  by  him  during 
the  continuance  of  his  office.  To  this  plaintiff  replied,  denying 
that  the  sum  mentioned  was  all  the  money  collected  by  the  col- 
lector during  the  continuance  of  his  office,  and  such  reply  was 
held  to  be  a  departure.1  Where,  in  an  action  of  trespass,  de- 
fendant answers  that  he  seized  the  goods  as  constable  under  an 
execution,  and  plaintiff  replies  that  he  was  the  head  of  a  family 
and  that  the  goods  were  exempt  and  were  claimed  by  him  as 
such,  there  is  no  departure.2 

§  776.  Where  the  petition  alleged  a  direct  undertaking  on  the 
part  of  defendant  and  the  reply  sought  to  charge  him  as  a  guar- 
antor, this  was  a  clear  case  of  departure.9  So  where  the  petition 
alleged  that  a  note  was  executed  by  defendant  and  others  as 
principals,  and  the  reply  charged  defendant  as  surety,  this  was 
a  departure.4 

§  777.  Where  the  action  is  against  a  corporation  for  damages 
for  refusing  to  transfer  stock  on  its  books,  and  the  petition  al- 
leges that  the  plaintiff  owns  the  stock,  the  fact  that  the  reply 
sets  up  a  special  ownership  as  pledgee  does  not  constitute  a  de- 
parture.5 If  the  petition  declares  for  the  price  of  goods  sold,  and 
the  answer  sets  up  an  agreement  which  entitled  defendant  to  a 
reduction  in  the  price,  a  reply  stating  the  agreement  differently 
and  alleging  a  breach  of  it,  but  denying  all  the  other  allegations 
of  the  answer,  is  not  a  departure.6  A  petition  set  forth  a  con- 
tract which  obligated  plaintiff  to  furnish  a  certain  abstract  of 
title  as  a  condition  to  his  right  of  recovery.     In  the  reply  this 

1  State  v.  Grimsley,  19  Mo.  171.  6  Merchants'  Nat.  Bank  v.  Richards, 

2  Duncan  v.  Frank,  8  App.  286.  74  Mo.  77. 

3  Philibert  v.  Burch,  4  App.  470.  6  Auchinclass  v.  Frank,  17  App.  41. 

4  Magruder  v.  Admire,  4  App.  133. 


§§  778-780.]  THE   REPLY.  401 

obligation  was  denied,  and  plaintiff  alleged  an  agreement  by  the 
defendant,  as  a  part  of  the  contract,  to  forego  his  right  to  the 
abstract.     This  was  held  to  be  a  departure.1 

§  778.  If  plaintiff  files  a  bill  to  enforce  specific  performance  of 
a  written  contract,  and  in  his  reply  sets  up  an  alleged  estoppel, 
this  constitutes  a  departure.2  A  suit  was  brought  for  an  account- 
ing and  settlement  of  the  affairs  of  a  partnership,  which  had  been 
before  the  institution  of  the  suit  dissolved  by  mutual  consent. 
The  answer  admitted  the  former  existence  of  the  partnership 
and  its  dissolution,  but  alleged  that  there  had  been  a  full  and 
final  settlement  of  its  affairs.  Plaintiff  in  the  reply  admitted,  by 
not  denying,  that  the  settlement  had  been  made,  but  sought  to 
avoid  such  settlement  by  alleging  his  sickness  at  the  time  and 
his  inability  to  examine  the  partnership  books,  and  by  averring 
that  there  had  been  omissions  of  charges  which  should  have  been 
made  against  defendant  and  a  failure  by  defendant  to  render  a 
just  and  true  account  of  the  partnership  property ;  but  there  was  no 
allegation  of  fraud  in  the  settlement.  It  was  held  that  the  plaint- 
iff should  have  set  forth  this  settlement  in  his  petition,  and  asked 
for  a  relief  from  it  upon  equitable  grounds,  and  that  his  reply 
constituted  a  departure.3 

§  779.  "Where  the  petition  is  on  a  promissory  note  in  the  ordi- 
nary form,  alleging  its  execution  by  defendant,  and  the  answer 
is  a  general  denial,  plaintiff  may  in  his  reply  plead  a  ratification; 
and  such  ratification  does  not  constitute  a  departure,  since  rati- 
fication is  only  another  method  of  execution.4  So,  where  plaint- 
iff, in  his  petition,  alleged  that  defendant  converted  his  horses, 
and  in  his  reply  alleged  that  defendant's  agent  converted  the 
horses,  and  that  defendant,  with  full  knowledge,  ratified  the 
agent's  act,  the  reply  did  not  constitute  a  departure,  since  the 
agency  may  be  established  either  by  prior  authorization  or  by 
subsequent  ratification.5 

§  780.  Lemon  v.  Chanslor*  was  an  action  for  injuries  to  plaint- 
iff caused  by  the  breaking  down  of  a  hack.  It  was  alleged  in 
the  answer  that  the  hack  was  drawn  by  well-trained  horses  and 

1  Randolph  v.  Frick,  57  App  400.  5  McLachlin  v.  Barker,  64  App.  511. 

2  Hill  v.  Rich  Hill  Coal  M.  Co.,  119  As  to  pleading  waiver  in  reply,  see 
Mo.  9.  §  107,  ante. 

3McMahill  v.  Jenkins,  69  App.  279.        «68  Ma  340. 
*  Cravens  v.  Gilliland,  73  Mo.  524 
Mo.  Code  Pu—  26 


10:2  THE    REPLY.  [§  780. 

carefully  driven  by  a  competent  driver,  and  that  it  was  not  over- 
loaded. This  part  of  the  answer  plaintiff  moved  to  strike  out, 
and,  upon  his  motion  being  overruled,  he  filed  a  reply  which 
raised  the  issue  that  the  hack  was  overloaded.  It  was  held  that, 
if  this  constituted  a  departure  in  pleading,  defendants  were  re- 
sponsible for  it,  by  reason  of  the  fact  that  they  tendered  such 
issue  in  their  answer,  and  that  they  should  not  be  heard  to  com- 
plain of  it. 


CHAPTEE  XXIX. 

RULES  GOVERNING  INTERPLEAS. 

§  781.  What  an  interplea  must  show. 

782.  The  answer. 

783.  Verification  of  interplea. 

§  781.  What  an  interplea  mnst  show. —  Where  one  files  a 
bill  of  interpleader  it  is  not  sufficient  for  him  to  state  that  the 
defendants  make  conflicting  claims  to  the  same  fund  which  is  in 
his  hands  as  a  stakeholder,  and  that  plaintiff  does  not  know  to 
which  of  them  to  pay  the  fund ;  the  bill  will  be  demurrable  un- 
less it  states  the  nature  of  the  conflicting  claims  sufficiently  to 
show  a  color  of  right  to  the  fund  on  the  part  of  each  claimant.1 
And  if  the  stakeholder  is  sued  by  one  of  the  claimants,  he  may 
in  his  answer  set  up  such  facts  as  will  constitute  a  good  bill  of 
interpleader,  and  may  pay  the  fund  into  court,  and  ask  that  the 
other  claimant  be  made  a  party  defendant  to  contest  his  right 
with  the  plaintiff.2  A  member  of  a  benefit  association  assigned 
his  certificate,  and  after  his  death  his  administrator  demanded 
the  payment  of  the  certificate,  and  upon  payment  being  refused 
sued  both  the  assignee  and  the  association,  asking  for  possession 
of  the  certificate  and  recovery  of  the  money.  Both  of  the  de- 
fendants answered  setting  up  the  assignment,  and  the  associa- 
tion tendered  the  money  in  court,  and  prayed  that  the  assignee 
and  the  administrator  be  directed  to  interplead.  It  was  held 
that  this  was  sufficient  as  a  bill  of  interpleader,  and  that  it  was 
not  necessary  that  the  association  should  make  denial  of  any  of 
the  allegations  of  the  plaintiff's  bill.3 

§  782,  The  answer. —  The  answer  to  an  interplea  need  not 
allege  defendant's  indebtedness  to  plaintiff,  if  the  bill  of  inter 
pleader  itself  admits  it.4  Where  the  interplea  is  filed  in  an  at- 
tachment suit,  and  avers  a  transfer  of  the  attached  property  by 
the  attachment  defendant  to  the  interpleader  prior  to  the  levy 
thereon,  a  general  denial  is  insufficient  to  present  the  claim  that 

i  Robards  v.  Clayton,  49  App.  608.  3  McFarland  v.  Creath,  35  App.  112. 

2  Heusner  v.  Mutual  Life  Ins.  Co.,  47        4  Meyberg  v.  Jacobs,  40  App.  128. 
App.  336. 


4l»A  RULES  GOVERNING  INTEKrLEAS.  [§  783. 

the  transfer  was  fraudulent  as  to  the  creditors  of  the  attachment 
defendant.1 

§  7S3.  Verification  of  interplea. —  The  interplea  may  be  ver- 
ified by  the  attorney  of  the  interpleader  to  the  best  of  his  knowl- 
edge and  belief.2  If  the  interplea  is  verified  only  by  the  cashier 
of  a  bank  which  was  one  of  the  interpleaders,  this  is  sufficient, 
even  though  the  bank  was  not  a  necessary  party  as  interpleader.3 
If  an  order  to  interplead  has  been  made,  and  the  interplea  has 
been  heard  upon  its  merits,  an  appellate  court  will  not  consider 
the  question  whether  the  chancellor  might  have  properly  re- 
quired an  affidavit  before  making  the  order.4 

i  Claflin  v.  Sommers,  39  App.  419.  4  Merchants'  National  Bank  v.  Rich- 

'Knapp  v.  Standley,  45  App.  264.         ards,  6  App.  454;  affirmed,  74  Ma  77. 
s  Scott-Force  Hat  Co.  v.  Hombs,  127 
Ma  392. 


CHAPTER  XXX. 

ABANDONED  PLEADINGS. 

§  784.  Regarded  as  never  made.  I  §  786.  Pleading  withdrawn. 

785.  Where  a  pleading  is  amended.  I     787.  Ignored  pleading. 

§  784.  Regarded  as  never  made. —  A  defense  which  has  been 
expressly  abandoned  will  be  regarded  as  having  never  been 
made.1 

§  785.  Where  a  pleading  is  amended. — When  a  pleading  is 
amended  by  the  filing  of  a  new  pleading  the  functions  of  the 
first  pleading  are  at  an  end.2  The  party  abandons  the  original 
pleading  and  all  matters  alleged  in  it.3  But  it  is  held  in  two 
later  decisions,  one  of  the  supreme  court  and  the  other  of  the 
court  of  appeals,  that  any  admissions  contained  in  the  former 
pleading  are  competent  evidence  against  the  party  who  filed  it.4 
Where  defendant  files  a  supplementary  answer  and  goes  to  trial 
on  it,  he  thereby  abandons  his  first  answer  and  all  matters  of 
defense  which  are  set  up  therein  and  which  are  not  restated  in 
the  supplementary  answer.5 

§  786.  Pleading  withdrawn. —  If  an  answer  is  withdrawn,  the 
traversable  allegations  of  the  petition  stand  admitted.6  Admis- 
sions in  an  answer  which  are  in  aid  of  a  defectively  stated  cause 
of  action  will  avail  to  uphold  the  judgment,  although  such  an- 
swer is  withdrawn  after  the  close  of  the  testimony,  and  another 
answer  which  does  not  contain  the  admissions  is  filed  in  place 
of  it.7 

§  787.  Ignored  pleading. —  Where  a  demurrer  has  been  filed 
and  no  judgment  is  rendered  thereon,  but  the  parties  afterward 
go  to  trial  on  the  merits,  it  will  be  presumed  that  the  demurrer 

i  Cockerill  v.  Stafford,  102  Mo.  57.  5  Kortzendorfer  v.  St.  Louis,  52  Mo. 

2Breckenkamp  v.  Reese,  3  App.  585;  204;  Rubelman  v.  McNichol,  13  App. 

Owens  Machine  Co.  v.  Pierce,  5  App.  584 

576;  Corley  v.  McKeag,  9  App.  38.  6  Price  v.  Page,  24  Mo.  65. 

3  Ticknor  v.  Voorhies,  46  Mo.  110.  7  Enterprise    Coal    Co.    v.    Liberty 

♦Anderson  v.  McPike,  86  Mo.  293;  Brewing  Co.,  20  App.  16.    See  also  the 

Murphy  v.  St.  Louis  Type  Foundry,  29  next  section. 
App.  541. 


406  ABANDONED   PLEADINGS.  [§  787. 

was  withdrawn.1  So,  too,  if  an  answer  is  filed,  and  the  caseafter- 
wards  goes  off  on  a  demurrer  without  any  notice  being  taken 
of  the  answer,  this  amounts  to  a  withdrawal  of  the  answer.2  And 
if  plaintiff,  after  having  filed  a  reply,  demurs  to  a  special  defense 
contained  in  the  answer,  he  will  be  deemed  to  have  withdrawn 
the  reply  as  to  such  defense.3  If  an  amended  petition  is  filed 
after  issue  joined,  but  no  further  notice  is  taken  on  the  record  of 
such  amended  petition,  the  appellate  court  will  not  consider  it  as 
forming  any  part  of  the  case.4 

i  Sweeney   v.  Willing,  6  Mo.  174;        *  Henley  v.  Henley,  93  Mo.  95. 
Dickey  v.  Malechi,  6  Mo.  177.  *  Collier  v.  Weldon,  1  Ma  1. 

2  Dunklin  County  v.  Clark,  51  Mo.  60. 


CHAPTER  XXXI. 


ATTACKING  PLEADINGS. 


788.  General  principles. 

789.  Filing  motions. 

790.  What  defects  are  material. 

791.  Same  —  Where    there    is    an 

agreed  statement. 

792.  Party  first  in  fault 

793.  Methods  of  raising  objections. 

795.  What  motions  are  equivalent 

to  a  demurrer. 

796.  How  objection  must  be  stated. 

797.  As  depending  upon  the  time 

when  pleading  is  attacked. 

798.  Objecting  at  trial  to  the  intro- 

duction of  any  evidence. 


§  800.  Same  —  A  case  illustrating  the 
rule. 

801.  Demurrer  to  the  evidence. 

802.  Motion  for  judgment  on  the 

pleadings. 

803.  Considering  the  exhibits. 

804  Where    part  of  a  pleading  is 
stricken  out  or  adjudged  bad. 

805.  Where  the  attack  is  not  fol- 

lowed up. 

806.  Effect  of  pleading  over  or  going 

to  trial. 


§  788.  General  principles.— The  rule  of  pleading  under  the 
Code  is  that,  by  taking  the  language  in  its  plain  and  ordinary 
meaning,  such  an  interpretation  should  be  given  to  it  as  fairly 
appears  to  have  been  intended  by  the  pleader.1  While  it  may 
appear  that  the  rules  of  pleading  are  technical  and  often  strict, 
yet  these  rules  do  not  rest  alone  on  the  arbitrary  will  of  the  law- 
maker, but  are  founded  in  that  sense  of  justice  which  recognizes 
the  right  of  every  party  to  a  suit  to  require  of  his  adversary  a 
clear  and  unequivocal  statement  of  his  side  of  the  case.  If  this 
rio-ht  is  demanded  in  due  form  and  in  season,  it  must  be  heeded 
as  a  demand  of  justice,  and  it  is  no  answer  to  say  that  the  de- 
mand is  technical.  But,  on  the  other  hand,  justice  will  not  allow 
a  party  to  lie  in  wait  for  his  adversary,  to  take  his  chances  on  a 
verdict,  and  then,  if  it  be  against  him,  profit  by  the  strict  tech- 
nicality of  the  science  of  pleading,  if  a  liberal  construction  can 
obviate  the  objection.2    If  a  petition  utterly  fails  to  set  forth 


1  Hickory  County  v.  Fugate,  143  Mo. 
71. 

2  Cobb  v.  Lindell  R.  Co.,  149  Mo.  135; 
Oglesby  v.  Mo.  Pac.  R.  Co.,  150  Mo. 
137.  It  is  said  by  the  supreme  court 
of  Wisconsin  that  no  warrant  can  be 


found  in  the  authorities  for  the  posi- 
tion that  where  the  objection  is  sea- 
sonably made,  as  where  the  petition 
is  challenged  by  demurrer,  such  peti- 
tion may  be  uncertain  and  ambula- 
tory, now  presenting  one  phase  to  the 


ATTACKING    PLEADINGS.  [§§  780,  790. 

any  facts  upon  which  a  judgment  against  defendant  could  be 
based,  the  court  may  dismiss  the  action  of  its  own  motion,  even 
after  an  answer  has  been  filed.1  After  the  verdict  the  court  will 
not  construe  the  petition  most  strictly  against  the  pleader,  but 
it  will  be  liberally  construed  with  a  view  to  substantial  justice.2 

§  789.  Filing  motions. —  A  motion  to  require  a  pleading  to 
be  made  more  definite  and  certain  must  be  filed  before  the  trial 
begins.3  And  the  same  rule  applies  to  a  motion  to  strike  out 
imperfect  counts  from  the  declaration,4  and  to  a  motion  to  elect.5 
If,  however,  the  several  counts  in  a  petition  contain  different 
consistent  statements  of  the  same  cause  of  action,  the  court  may 
of  its  own  motion  compel  plaintiff  at  the  close  of  his  evidence  to 
elect  on  which  of  the  counts  he  will  take  the  verdict  of  the  jury.6 
Under  section  641,7  all  motions  filed  in  term  time  must  be  filed  at 
least  one  clay  before  they  may  be  argued  or  determined.8 

§  790.  What  defects  are  material.—  While  it  cannot  be  too 
strongly  asserted  that  the  object  of  code  pleading  is  not  to  en- 
courage looseness  or  vagueness,  yet  it  is  a  necessary  result  of  the 
change  in  method  that  many  defects  which  were  regarded  as 
fatal  at  common  law  are  not  of  any  serious  importance  under 
the  Code.9  A  pleading  can  be  attacked  by  demurrer  or  prelimi- 
nary motion  only  where  it  is  faulty  on  account  of  matter  appar- 
ent on  its  face.10  Any  obvious  clerical  error  in  a  pleading  will  be 
disregarded.11  Thus  a  misspelled  word  will  not  vitiate  a  plead- 
ing, where  it  is  apparent  what  word  was  intended,  and  where 
the  word  as  spelled  has  the  same  sound  as  the  word  incorrectly 
spelled.  This  was  held  to  be  true,  even  in  an  indictment;12  and 
it  is  needless  to  say  that  no  stricter  rule  would  be  applied  in  a 

court  and  now  another,  at  the  mere  3  Grabbe  v.  St.  Louis  Drayage  Co., 

will  of  the  pleader,  so  that  it  may  be  42  App.  522. 

regarded  as  one  in  tort,  or  one  on  con-  4  State  to  use  v.  Price,  15  Mo.  375. 

tract,  or  in  equity,  as  he  is  pleased  to  ft  Wilson  v.  St.  Louis  &  S.  F.  R  Co., 

mune  it  and  the  necessities  of  argu-  67  App  443. 

ment  require,  and  if  discovered  to  be  6  Roberts  v.  Quincy,  O.  &  K  C.  R. 

good  in  any  of  the  turns  or  phases  Co.,  43  App.  287. 

which  it  may  be  thus  made  to  assume,  7  Rev.  Stat.  1899. 

that  it  must  be  upheld  in  that  aspect  8  Paddock  v.  Somes,  103  Mo.  226. 

as  a  proper  and  sufficient  pleading.  9  Sweet  v.  Maupin,  65  Mo.  65. 

Kewaunee  County  v.  Decker,  30  Wis.  10  Burdsall  v.  Davies,  58  Mo.  138. 

624  »  Gibbs  v.  Southern,  116  Mo.  204. 

i  Staples  v.  Shackleford,  150  Mo.  471.  12  State  v.  Colly,  69  App.  444. 

2  Oglesby  v.  Mo.  Pac.  R  Co.,  150  Mo. 
137. 


§§  791-793.]  ATTACKING   PLEADINGS.  409 

civil  cause.1  Though  the  statements  in  a  pleading  may  be  de- 
fective and  uncertain,  yet  their  defects  and  uncertainties  may  be 
cured  by  evidence  given  in  support  of  them.2 

§  791.  Same  —  Where  there  is  an  agreed  statement, —  If  at 
the  return  term  the  parties  come  into  court,  waive  the  ordinary 
pleadings  and  submit  the  controversy  on  an  agreed  statement  of 
facts,  all  defects  in  the  petition  become  immaterial,  since  the  trial 
is  not  had  on  the  pleadings  but  on  the  statement  of  facts.3 

§  792.  Party  .first  in  fault.— The  party  first  in  fault  is  in  no 
position  to  take  advantage  of  a  defect  in  the  pleading  of  the  other 
party.4  And  under  the  code  practice,  as  at  the  common  law,  the 
demurrer  goes  back  to  the  first  pleading;  if  the  petition  is  insuffi- 
cient, a  demurrer  to  the  answer  will  be  decided  in  favor  of  the 
defendant.5  For  such  purpose  a  motion  to  strike  out  the  answer 
or  any  portion  thereof  is  properly  treated  as  a  demurrer,  and 
such  motion  relates  back  to  the  petition,  and  questions  its  suffi- 
ciency by  reason  of  any  substantial  error  or  defect  which  would 
render  a  verdict  nugatory  if  founded  upon  it.6 

§  793.  Methods  of  raising  objections. —  Objections  which  can- 
not be  properly  made  either  by  demurrer  or  answer  must  be  made 
by  a  motion  of  some  kind,  either  a  motion  to  strike  out,  or  a  mo- 
tion to  make  more  definite  and  certain,  according  to  the  circum- 
stances of  the  case.  All  defects  of  this  character  are  waived, 
unless  objection  is  taken  by  a  motion  of  one  kind  or  the  other.7 
If  the  petition  shows,  at  least  by  intendment,  an  existing  con- 
tract between  plaintiff  and  defendant,  and  a  right  of  recovery 
thereon,  a  general  demurrer  will  not  lie,  but  the  defect,  if  there 
is  any,  must  be  reached  by  a  motion  to  make  definite  and  cer- 
tain.8 Where  it  is  designed  to  raise  the  objection  to  a  pleading 
that  it  is  vague  and  indefinite,  it  can  be  done  only  by  special  de- 
murrer or  by  motion  to  make  the  pleading  more  definite.9    And 

1In  the  case  just  cited  the  words  Mfg.  Co.  v.  Steamboat  Saltzman,  42 

"lager    beer"  were    spelled    "larger  App.  85;    Harford  v.  Boyes,  56  App. 

beer."  139;  Haynes  v.  Trenton,  123  Mo.  326; 

2  Murphy  v.  North  Brit.  Ins.  Co.,  70  Walters  v.  Hamilton.  75  App.  237. 

App.  78.  8  Hirsch   v.   United    States    Grand 

2  Wagner  v.  St.  Francis  Ben.  Soc.,70  Lodge,  56  App.  101. 

App.  161.  9  Cockerill  v.  Stafford,  102  Mo.  57; 

*  Matthews  v.  Boas,  6  Mo.  597.  Smith  v.  Chicago  &  Alton  R.  Co.,  119 

5  Potter  v.  Herring,  57  Mo.  184  Mo.  246;  Lingenfelter  v.  Phoenix  Ins. 

6  Paxon  v.  Talmage,  87  Mo.  13.  Co.,  19  App.  252. 
7Sime  v.  Field,  24  App.  557;  Burke 


410  ATTACKING  PLEADINGS.         [§§  794-79G. 

upon  the  same  principle,  the  objection  to  a  petition  that  it  states 
a  cause  of  action  imperfectly  must  be  made  in  like  manner.1 

§  794.  If  an  answer  does  not  state  facts  sufficient  to  constitute 
a  defense,  the  defect  may  be  reached  either  by  demurrer  or  by 
a  motion  to  strike  out.2  Where  an  answer  improperly  blends 
allegations  constituting  a  defense  to  the  cause  of  action  and 
those  relating  to  a  counter-claim,  the  defect  may  be  reached  by 
a  motion  to  strike  out.3  Where  the  defect  in  the  petition  is  one 
which  is  cured  by  verdict,  defendant  must  make  his  objection 
either  by  demurrer  or  motion,  since  a  plea  to  the  merits  waives 
the  objection.4  The  fact  that  an  amended  petition  sets  forth  a 
different  cause  of  action  from  that  declared  on  in  the  original 
petition  cannot  be  reached  by  demurrer.5 

§  795.  What  motions  are  equivalent  to  a  demurrer. —  A  mo- 
tion to  strike  out  all  the  substantial  and  material  parts  of  a  peti- 
tion is  in  effect  a  demurrer,6  and  as  such  reaches  back  and  ques- 
tions the  sufficiency  of  plaintiff's  petition.7  A  motion  to  dismiss 
on  the  ground  that  the  petition  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action  is  equivalent  to  a  demurrer,  and  con- 
fesses the  truth  of  the  allegations,  denying  only  their  legal  suffi- 
ciency.8 And  a  motion  to  strike  out  confesses  the  facts  which 
are  well  pleaded.9  A  motion  to  strike  out  a  plea  in  abatement 
is  in  the  nature  of  a  demurrer  to  the  plea.10  When  used  for  the 
purpose  of  striking  out  a  pleading,  or  some  portion  of  a  plead- 
ing, a  motion  is  governed  by  the  rules  governing  demurrers.11 
A  motion  in  the  nature  of  a  demurrer  cannot  be  less  specific  in 
stating  the  grounds  of  objection  than  a  demurrer.12 

§  796.  How  objection  must  be  stated. —  Where  defendant  de- 
sires by  his  answer  to  raise  the  objection  that  there  is  a  defect  of 
parties,  or  that  plaintiff  has  no  capacity  to  sue,  or  no  authority 
to  institute  the  suit,  it  is  not  sufficient  to  aver  merely  that  there 
is  a  defect  of  parties,  or  that  plaintiff  has  no  authority  to  insti- 
tute or  maintain  the  proceeding,  but  the  facts  must  be  set  out.13 

1  Lynch  v.  St.  Joseph  &  Iowa  R.  Co.,  9  Wonderly  v.  Lafayette  County,  150 
111  Mo.  601.  Mo.  635. 

2  Howell  v.  Stewart,  54  Mo.  400.  10  Missouri  Glass  Co.  v.  Copeland  Sew- 

3  Kinney  v.  Miller,  25  Mo.  576.  ing  Machine  Co.,  88  Mo.  57. 

«  Malone  v.  Fidelity  &  Casualty  Co.,  "  Paddock  v.  Somes,  102  Ma  226. 

71  App.  1.  12  State  ex  rel.  v.  Walbridge,  69  App. 

5  Daudt  v.  Machens,  13  App.  592.  657.     See  also  §  802,  post 

6  Austin  v.  Loring,  63  Mo.  19.  13  Shockley  v.  Fischer,  21  App.  551. 

7  Paxon  v.  Talmage,  87  Mo.  13.  And  it  seems  that  the  point  can  be 

8  Butler  v.  Lawson,  72  Mo.  227.  made  by  answer  only  when  the  peti- 


§§  797,  798.]  ATTACKING   PLEADINGS.  411 

§  797.  As  depending  upon  the  time  when  the  pleading  is  at- 
tacked.—  There  are  some  defects  which  are  fatal  to  a  petition  or 
other  pleading,  and  which  can  therefore  be  taken  advantage  of 
at  any  stage  of  the  proceedings.  Such  defects  can  be  neither 
waived  nor  cured.  But  all  mere  defects,  not  substantial  or  con- 
stitutive, may  be  waived  or  cured,  and  will  be  held  to  have  been 
waived  or  cured,  unless  advantage  be  taken  of  them  at  a  proper 
stage  of  the  proceedings.1  As  has  been  already  stated,  justice 
will  not  allow  a  party  to  lie  in  wait  for  his  adversary,  to  take 
his  chances  on  a  verdict,  and  then,  if  it  be  against  him,  profit  by 
the  strict  technicality  of  the  science  of  pleading,  if  a  liberal  con- 
struction will  obviate  the  objection.2  For  these  reasons,  where 
the  petition  is  first  attacked  after  a  verdict  has  been  rendered, 
plaintiff  is  entitled  to  the  benefit  of  every  reasonable  inference 
from  the  facts  alleged.3  If  the  allegations  of  a  pleading  are  un- 
certain or  vague,  the  adverse  party  should  seasonably  move  for 
their  correction.4  The  question  whether  a  pleading  is  good  after 
verdict,  which  would  not  have  been  held  sufficient  if  timely 
objection  had  been  made,  will  be  considered  in  a  later  chapter.5 
In  a  suit  brought  by  an  infant,  the  failure  of  the  petition  to  al- 
lege the  appointment  of  a  guardian  or  next  friend  to  prosecute 
the  suit  constitutes  an  objection  which  goes  merely  to  the  legal 
capacity  of  the  plaintiff  to  sue,  and,  if  no  objection  is  taken  to  it 
before  the  trial,  it  is  such  an  imperfection  as  is  cured  by  the  stat- 
ute of  jeofails.6  If  all  of  several  tenants  in  common  do  not  join 
in  an  action  of  trespass  quare  clausum  f regit,  defendant  must  take 
advantage  of  that  fact  before  going  to  trial.7 

§  798.  Objecting  at  trial  to  the  introduction  of  any  evidence. 
When  the  petition  fails  to  state  a  cause  of  action,  owing  to  the 
omission  of  some  essential  averment,  and  its  terms  are  not  suffi- 
ciently general  to  comprehend  such  averment  by  fair  and  rea- 
sonable intendment,  an  oral  demurrer  may  be  made  to  the  peti- 
tion at  the  trial  by  objecting  to  the  admission  of  any  evidence  in 
support  of  it.8     Such  a  demurrer,  however,  does  not  entirely  take 

tion  is  on  its  face  sufficient  in  this  re-  5  See  chs.  XXXVIII,  XXXIX 

gard.     Ibid.  6Rev.  Stat.  1899,  sees.  672-3;   Lyd- 

i  Consult  chs.  XXXVI  to  XXXIX,  don  v.  Dose,  81  App.  64. 

inclusive.  7  Thompson  v.  Chicago,  R.  L  &  Pac. 

2  Cobb  v.  Lindell  R  Co.,  149  Mo.  135.  R  Co.,  80  Mo.  521. 

3  Davis  v.  Jacksonville  S.  E.  Line,  8  Murphy  v.  North  British  Ins.  Co., 
126  Mo.  69.  70  App.  78;  Malone  v.  Fidelity  &  Cas. 

*  Coombs  Commission  Co.  v.  Block,  Co.,  71  App.  1 ;  Jones  v.  Philadelphia 
130  Mo.  668.  Underwriters,  78  App.  296. 


412  ATTACKING  PLEADINGS.     ,    [§§  799,  800. 

the  place  of  a  formal  demurrer  by  pleading,  and  should  not  be 
sustained  for  a  mere  informality  in  the  statement  of  any  essential 
fact.1  An  objection  of  this  character  should  not  be  sustained  un- 
less the  petition  is  so  defective  that  a  judgment  thereon  would  be 
arrested  because  of  its  failure  to  state  a  cause  of  action.2  If  the 
defect  is  such  that  it  would  be  cured  by  verdict,  it  must  be  taken 
advantage  of  by  a  demurrer  in  the  regular  way,  or  by  a  motion 
filed  before  the  trial.3  And  the  same  rule  obtains  if  the  petition 
impliedly  states  a  cause  of  action.4  In  a  case  where  an  objection 
to  the  introduction  of  evidence  would  be  sustained,  the  court  may 
dismiss  the  action  of  its  own  motion,  even  though  defendant  has 
filed  an  answer.5 

§  799.  While  the  court  is  bound  in  a  proper  case  to  sustain  an 
objection  that  the  petition  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  even  though  not  introduced  until  the 
plaintiff  has  entered  upon  his  proof,  yet  courts  do  not  look  with 
favor  on  the  practice  of  postponing  such  objection  until  that  time. 
The  fair  way  is  to  challenge  the  sufficiency  of  the  petition  by 
demurrer  in  the  beginning,  so  that,  if  it  is  adjudged  insufficient 
and  is  susceptible  of  amendment,  the  fault  may  be  corrected  at 
the  threshold.  If  a  party  lies  in  wait  for  his  adversary,  the  court 
should  not  allow  him  an  advantage  which  he  could  not  have  ob- 
tained in  the  open  field.6  If  sufficient  facts  can  be  gathered  from 
the  averments  of  the  petition  to  make  out  a  case,  however  im- 
perfectly stated,  such  an  objection  is  properly  overruled.7  And, 
in  such  case,  every  reasonable  intendment  will  be  indulged  in 
favor  of  the  petition.8  "Where  plaintiff  improperly  pleads  new 
matter  in  his  reply,  or  pleads  it  in  a  defective  manner,  the  de- 
fendant cannot  wait  until  the  trial  and  then  on  that  ground 
object  to  the  introduction  of  any  evidence.  He  must  meet  the 
defect  by  a  special  demurrer,  or  better  by  a  motion  to  strike  out 
the  part  improperly  pleaded.9 

§800.  Same  —  A  case  illustrating  the  rule, —  In  an  action 
for  damages  based  upon  the  failure  of  the  defendant,  a  railroad 

1  Young  v.  Shickle  Iron  Co.,  103  Mo.  4  Kansas  City  v.  American  Surety 
324;  Hatten  v.  Randall,  48  App.  203;  Co.,  71  App.  315;  Jones  v.  Philadelphia 
Munford  v.  Keet,  65  App.  502;  Todd  Underwriters,  78  App.  296;  Marshall 
v.  Havlin,  72  App.  565.  v.  Ferguson,  78  App.  645. 

2  Donaldson  v.  Butler  County,  98  Mo.  5  Staples  v.  Shacklef  ord,  150  Mo.  471. 
163.  6  Haseltine  v.  Smith,  154  Mo.  404. 

3  Marshall  v.  Ferguson,  78  App.  645;  7Delaney  v.  Bowman,  82  App.  252. 
Jones  v.  Philadelphia  Underwriters,  8  Marshall  v.  Ferguson,  78  App.  645. 
78  App.  296.  9  Ricketts  v.  Hart,  73  App.  647. 


§§  801-803.]  ATTACKING   PLEADINGS.  413 

company,  to  comply  with  certain  ordinances  of  a  city  relating 
to  speed,  and  requiring  the  bell  of  the  locomotive  to  be  rung,  the 
petition  set  out  with  particularity  the  ordinance,  the  speed  of 
the  train,  and  the  failure  to  ring  the  bell,  and  the  fact  that  the 
deceased  was  run  over  and  killed.  It  then  concluded  with  the 
averment  that,  by  reason  of  the  facts  aforesaid,  plaintiff  is  dam- 
aged to  the  extent  of  $5,000.  An  objection  was  made  to  the  in- 
troduction of  evidence  on  the  ground  that  the  petition  failed  to 
state  that  the  violation  of  the  city  ordinance  was  the  cause  of  the 
accident,  and  that  no  attempt  was  made  in  the  petition  to  con- 
nect the  failure  to  observe  the  ordinance  with  the  accident.  It 
was  held  that  this  point  would  have  been  well  taken  if  it  had 
been  raised  by  demurrer,  but  that  it  was  not  good  when  raised 
only  by  objection  to  the  introduction  of  any  evidence.1 

§  801.  Demurrer  to  the  evidence. —  A  demurrer  to  the  evi 
dence  will  not  be  sustained  merely  because  the  testimony  offered 
does  not  support  certain  averments  of  the  petition,  if  the  evidence 
does  support  averments  which  are  sufficient  to  authorize  a  re- 
covery.2 This  subject,  however,  more  properly  belongs  in  a  work 
on  Practice. 

§802.  Motion  for  judgment  on  the  pleadings. —  Amotion 
for  judgment  on  the  pleadings  is  in  the  nature  of  a  demurrer,  and 
raises  only  an  issue  of  law.3 

§  803.  Considering  the  exhibits. —  Since  an  instrument  filed 
with  the  pleadings  as  an  exhibit  does  not  constitute  any  part  of 
the  pleading  and  is  not  a  part  of  the  record,4  such  exhibit  will 
not  support  the  petition,  either  when  attacked  by  a  demurrer  or 
by  motion  in  arrest.5  The  sufficiency  of  the  pleading  must  be 
determined  by  its  contents,  and  it  can  be  neither  aided  nor  in- 
validated by  the  accompanying  exhibit.6    But  this  rule  does  not 

1  Lynch  v.  St.  Joseph  &  Iowa  R.  Co.,  South  St  Louis  Mutual  Ins.  Co..  40 
111  Mo.  601.  A  similar  ruling  will  be  Mo.  19;  Peake  v.  Bell,  65  Mo.  224; 
found  in  Foster  v.  Mo.  Pac.  R.  Co.,  115  Pomeroy  v.  Fullerton,  113  Mo.  440; 
Mo.  165.  Hickory  County  v.  Fugate,  143  Mo.  71. 

2  Gannon  v.  Laclede  Gas  Light  Co.,  5  Bowling  v.  McFarland,  38  Mo.  465; 
145  Mo.  502.  Emrnert  v.  Meyer,  65  App.  609.    The 

3  State  ex  rel.  v.  Simmons  Hardware  case  of  Case  v.  Fogg,  46  Mo.  44,  while 
Co.,  109  Mo.  118.  apparently  holding  a  contrary  view, 

4  Kearney  v.  Woodson,  4  Mo.  114;  is  manifestly  out  of  line  with  the 
Hadwen  v.  Home  Mut.  Ins.  Co.,  13  otherwise  unbroken  course  of  decis- 
Mo.  473;  Hall  v.  Harrison,  21  Mo.  227;  ions  in  this  state. 

Chambers   v.   Carthel,    35    Mo.    374;        « Merrill   v.   Central  Trust  Co.,  46 
Baker  v.  Berry,  37  Mo.  306;  Bowling    App.  236. 
v.   McFarland,  38  Mo.   465;    Kerr  v. 


414:  ATTACKING   PLEADINGS.  [§§  804,  805. 

apply  to  an  account  of  items  annexed  to  a  pleading,  which  is  a 
part  of  the  record  and  a  proper  basis  of  evidence  to  sustain  it.1 
And  if  the  action  is  upon  an  account,  and  the  account  is  set  forth 
in  conformity  with  the  requirements  of  the  statute,  by  being 
either  embodied  in  the  petition  or  attached  to  it,  it  forms  a  part 
of  the  record.2 

§  S04.  Where  part  of  a  pleading  is  stricken  out  or  adjudged 
bad. —  If  an  answer  contains  several  defenses,  one  or  more  of 
which  are  adjudged  insufficient  on  demurrer  or  motion  to  strike 
out,  but  those  remaining  are,  if  sustained,  sufficient  to  defeat  the 
action  of  plaintiff,  defendant  has  the  right  to  go  to  trial  upon 
the  remaining  defenses,  and  a  judgment  by  default  cannot  be 
rendered  against  him.3  So,  too,  where  defendant's  answer  con- 
tains a  general  denial  and  also  a  special  defense,  and  plaintiff 
interposes  a  demurrer  to  the  special  defense  which  is  overruled, 
it  is  not  proper  for  the  court  to  enter  judgment  in  defendant's 
favor  on  the  pleadings,  if  there  is  still  matter  left  to  be  tried 
under  the  general  issue.  Thus,  in  an  action  brought  against  a 
telegraph  company  to  recover  damages  for  a  mistake  in  trans- 
mitting a  message,  the  defendant  interposed  a  general  denial, 
and  also  set  up  the  defense  that,  by  reason  of  the  usual  clause 
exempting  the  company  from  damages  for  mistakes  unless  the 
dispatch  was  repeated,  the  company  was  not  liable.  To  this 
special  defense  plaintiff  demurred,  and  the  court  overruled  the 
demurrer.  On  the  failure  of  plaintiff  to  plead  further,  the  court 
entered  a  general  judgment  for  defendant;  but  this  was  held  to 
be  erroneous  because,  while  the  special  defense  exonerated  the 
company  from  the  payment  of  damages,  yet  under  the  general 
issue  plaintiff  might  still  recover  the  amount  paid  by  him  for 
the  transmission  of  the  message.4 

§  805.  Where  the  attack  is  not  followed  up.—  If  a  demurrer 
is  filed  and  no  judgment  is  rendered  on  it,  but  the  parties  after- 
wards go  to  trial  on  an  answer  to  the  merits,  the  demurrer  will 
be  presumed  to  have  been  withdrawn.5  So  if  a  motion  is  made 
to  strike  out  defendant's  answer  and,  defendant  not  appearing 
upon  the  calling  of  the  case,  judgment  is  given  for  the  plaintiff 

1  Coombs  Commission  Co.  v.  Block,  4  Jarboe  v.   Western    Union    Tele- 

130  Mo.  668.  graph  Co.,  63  App.  226. 

2Hassett  v.  Rust,  64  Mo.  325;  Con-  5  Sweeny    v.    Willing,   6    Mo.    174; 

nor  v.  Heman,  44  App.  346.  Dickey  v.  Malechi,  6  Mo.  177. 

3  Munford  v.  Keet,  154  Mo.  36.    See 
§  806,  post. 


§  806.]  ATTACKING   PLEADINGS.  415 

without  any  formal  disposition  of  the  motion,  defendant  is  in  no 
position  to  complain.1 

§  806.  Effect  of  pleading  oyer  or  going  to  trial.— If  a  motion 
to  strike  out  part  of  a  pleading  is  overruled,  and  the  party  filing 
the  motion  pleads  over,  he  thereby  waives  his  right  to  review  the 
action  of  the  court  on  such  ruling,  even  though  he  saves  his  ex- 
ceptions.2 This  rule  applies  where  a  motion  to  make  a  petition 
more  definite  and  certain,  or  where  a  motion  to  strike  out  an 
amended  petition  because  it  changes  the  cause  of  action,  has  been 
overruled.3  So  where  defendant  moves  to  dismiss,  and  his  mo- 
tion is  overruled,  if  he  participates  in  the  trial  he  waives  his  right 
to  have  the  court's  action  reviewed.4  If  an  answer  is  stricken 
out  and  defendant  files  a  further  answer,  he  abandons  his  right 
to  review  the  court's  action,5  even  though  he  excepts  to  the  ac- 
tion of  the  court.6  And  if  defendant  answers  over  after  the  court 
has  stricken  out  his  plea  in  abatement  in  an  attachment  suit,  he 
waives  all  objection  to  such  action.7  In  like  manner  plaintiff,  by 
filing  a  reply  to  that  part  of  the  answer  which  he  had  attacked 
by  a  motion  to  strike  out,  waives  his  right  to  have  the  court's 
action  reviewed.8 

i  Webb  v.  Stevens,  14  Mo.  480.  4  Cofer  v.  Riseling,  153  Mo.  633. 

2Coffman  v.  Walton,  50  App.  404;  »Fuggle  v.  Hobbs,  42  Mo.  537. 

Williams  v.  Chicago,  S.  F.  &  Cal.  R.  Co.,  6  Gale  v.  Foss,  47  Mo.  276. 

112  Mo.  463;  Liese  v.  Meyer,  143  Mo.  547.  7  McDonald  v.  Fist,  60  Mo.  172. 

3  Sauter  v.  Leveridge,  103  Mo.  615;  8 Springfield  E.  &  T.  Co.  v.  Donovan, 

Lawless  v.  Lawless,  39  App.  539;  Davis  147  Mo.  622. 
v.  Boyce,  73  App.  563;  Hansard  v.  Men- 
derson,  73  App.  584. 


CHAPTER  XXXII. 


THE  DEMURRER. 


Decisions  applying  the  rule. 

Demurrer  to  prayer  for  relief. 

What  objections  may  be 
raised  —  Misjoinder  of  causes 
in  one  count. 

Same  —  Statute  of  limitations. 

What  objections  must  be  raised 
by  demurrer. 

Same  —  Misjoinder  or  non- join- 
der of  parties. 

Same  —  Misjoinder  of  causes. 

Same  —  Misjoinder  of  parties 
and  of  causes. 

No  cause  of  action  stated. 

Same — Cases  applying  the  rule. 

Same  —  Relief. 

Time  of  filing  demurrer. 

Action  on  demurrer. 

Sufficiency  of  prior  pleading. 

Demurrer  not  acted  on. 

Effect  of  sustaining  the  de- 
murrer. 

Same  —  Third  pleading. 

Effect  of  overruling  the  de- 
murrer. 

Effect  of  answering  over. 


§  807.  The  statute. —  The  defendant  may  demur  to  the  peti- 
tion whenever  it  appears  upon  the  face  thereof,  either,  first,  that 
the  court  has  no  jurisdiction  of  the  person  of  the  defendant  or  of 
the  subject  of  the  action;  or,  second,  that  plaintiff  has  no  legal 
capacity  to  sue;  or,  third,  that  there  is  another  action  pending 
in  this  state  between  the  same  parties  and  for  the  same  cause ; 
or,  fourth,  that  there  is  a  defect  of  parties,  plaintiff  or  defend- 
ant; or,  fifth,  that  several  causes  of  action  have  been  improperly 
united ;  or,  sixth,  that  the  petition  does  not  state  facts  sufficient 
to  constitute  a' cause  of  action;  or,  seventh,  that  a  party,  plaintiff 
or  defendant,  is  not  a  necessary  party  to  a  complete  determina- 


807. 

The  statute. 

§  827. 

808. 

The  statute  applied. 

82a 

809. 

Demurrer  in  equity  causes. 

829. 

810. 

Demurrer  to  answer. 

811. 

Demurrer  to  exhibits. 

812. 

Who  may  demur. 

832. 

813. 

Where  there  are  several  defend- 
ants. 

833. 

814.  General  demurrer. 

834. 

815. 

Special  demurrer. 

816. 

What    a    general    demurrer 

835. 

reaches. 

836. 

817. 

Capacity  of  plaintiff  to  sue. 

818. 

What  demurrer  admits. 

837. 

819. 

Does  not  admit  conclusion  of 

838. 

law. 

839. 

820. 

Same  —  Rule  in  equity. 

840. 

821. 

Same  —  Illustrative  cases. 

841. 

822. 

Admission  applies  only  to  case 

842. 

at  bar. 

843. 

823. 

But  is  effective    in  appellate 
court. 

844 

824. 

Assessing  the  damages. 

845. 

825. 

The  demurrer  must  specify  the 
grounds. 

846. 

826. 

What  objections  may  be  raised 
by  demurrer. 

847. 

808,  809.] 


THE   DEMURRER. 


4:17 


tion  of  the  action.1  The  demurrer  must  distinctly  specify  the 
grounds  of  objection  to  the  pleading,  and  unless  it  does  so  it  may 
be  disregarded.2  The  defendant  may  demur  to  the  whole  peti- 
tion, or  to  any  one  or  more  of  the  alleged  causes  of  action  stated 
therein,  and  may  answer  to  the  residue.3  Plaintiff  may  demur  to 
one  or  more  defenses  set  up  in  the  answer,  stating  in  his  demurrer 
the  grounds  thereof.4  And  defendant  may  demur  to  the  reply.  A 
demurrer  to  the  answer  or  to  the  reply  is  governed  by  the  rules 
prescribed  in  relation  to  demurrers  to  petitions  where  they  apply.5 

§  808.  The  statute  applied.— The  defendant  may  demur  to 
the  whole  petition,  or  to  any  one  or  more  of  the  alleged  causes 
of  action  stated  in  it,  and  answer  the  residue.6  He  may  demur 
to  one  part  of  a  petition  and  answer  to  another;  but  he  cannot 
do  both  at  the  same  time  and  in  the  same  pleading.7  He  cannot 
demur  and  answer  to  the  same  subject-matter.8  By  raising  the 
issues  of  fact  he  waives  those  of  law.  Therefore  a  defendant 
cannot  at  the  same  time  answer  plaintiff's  petition  and  demur  to 
it  for  a  misjoinder  of  parties.9  But  if  plaintiff  files  a  general  de- 
nial by  way  of  reply,  and  at  the  same  time  demurs  to  a  special 
defense  in  the  answer,  this  will  be  deemed  a  withdrawal  of  the 
reply  to  that  defense.10 

§  809.  Demurrer  in  equity  causes. —  The  office  of  a  demurrer, 
when  interposed  to  a  bill  in  equity,  is  to  reach  a  determination 
whether  the  allegations  of  the  bill  show  a  proper  case  for  equi- 
table interference.11  If  the  petition  is  framed  with  a  view  to 
equitable  relief,  and  the  facts  set  out  do  not  warrant  such  relief, 
a  demurrer  will  lie ;  as  where  the  petition  seeks  for  an  account, 
and  an  injunction  and  the  appointment  of  a  receiver,  as  though 
a  partnership  existed  between  the  parties,  but  sets  out  a  contract 
which  shows  that  there  is  no  partnership.12  An  executor  sought 
to  enforce  against  the  residuary  legatee  a  vendor's  lien  in  favor 
of  the  testator.  The  legatee  pleaded  in  defense  that  all  debts 
provable  against  the  estate,  as  well  as  all  bequests  and  charges 


1  Rev.  Stat.  1899,  sec.  598. 
*Rev.  .Stat.  1899,  sec.  599. 
s  Rev.  Stat.  1899,  sec.  600. 
*  Rev.  Stat.  1899,  sec.  607. 
&Rev.  Stat.  1899,  sec.  609. 
«  Rev.  Stat.  1899,  sec.  600. 

7  Taber  v.  Wilson,  34  App.  89. 

8  Long  v.  Towl,  41  Mo.  398. 

9  Donahue  v.  Bragg,  49  App.  273. 

Mo.  Code  Pl.—  27 


io  Henley  v.  Henley,  93  Mo.  95.  This 
is  placed  on  the  ground  that  the  reply, 
being  general,  must  be  regarded  as 
relating  alone  to  that  part  of  the  an- 
swer not  embraced  in  the  special  de- 
fense. 

ii  Roberts  v.  Bartlett,  26  App.  611, 
615;  Fisher  v.  Patton,  134  Mo.  32. 

U  Mulholland  v.  Rapp,  50  Mo.  42. 


-IIS  THE    DEMUKREE.  [§§810-812. 

payable  out  of  the  estate  other  than  the  residuary  bequest  to 
himself,  had  been  satisfied,  but  it  also  appeared  from  his  answer 
that  the  time  allowed  by  statute  for  the  presentation  of  claims 
against  the  estate  had  not  elapsed.  A  demurrer  to  this  defense 
was  properly  sustained,  by  reason  of  the  fact  that  the  allegation 
in  the  answer  that  there  were  no  provable  demands  against  the 
estate  was  not  susceptible  of  absolute  proof,  and  the  answer  did 
not  tender  a  refunding  bond.  The  trial  court  might,  however,  in 
such  a  case  stay  the  execution  upon  the  giving  of  such  a  bond, 
if  the  proof  satisfied  the  court  that  the  allegation  was  true.1 

§  810.  Demurrer  to  answer.— If  the  answer  sets  up  a  good 
defense,  it  is  not  demurrable  because  it  contains  matter  of  sur- 
plusage.2 If  a  demurrer  goes  to  the  whole  answer,  and  any  mat- 
ter pleaded  in  the  answer  tenders  any  defense  in  wThole  or  in 
part,  the  demurrer  must  be  overruled.3  If  the  answer  consists 
of  a  general  denial  and  special  defenses,  and  the  special  defenses 
do  not  in  terms  admit  facts  sufficient  to  entitle  the  plaintiff  to 
judgment,  a  demurrer  to  the  whole  answer  will  not  lie;  the 
proper  method  of  testing  the  sufficiency  of  the  special  pleas  is 
to  demur  to  them  only,  or  to  move  to  strike  them  out.4  Whether 
the  defense  pleaded  is  a  bar  to  the  whole  action  or  only  pro  tanto 
is  a  matter  of  law  for  the  court;  but  if  it  is  good  as  a  defense  to 
a  part  of  the  cause  of  action,  it  is  not  demurrable.5  An  answer 
which  neither  denies  nor  confesses  and  avoids  the  statements  of  the 
petition  is  demurrable.6  The  demurrer  is  sufficient  if  it  states  that 
the  facts  set  out  in  the  answer  constitute  no  defense  to  the  action.7 

§  811.  Demurrer  to  exhibits.— An  instrument,  which  is  by 
section  643 8  required  to  be  filed  with  the  pleading,  cannot  be 
made  the  subject  of  demurrer,9  although  the  failure  to  file  the  in- 
strument may  be  a  ground  of  demurrer.10 

§812.  Who  may  demur.— Where  there  is  a  misjoinder  of 
causes  of  action,  any  defendant  may  demur;  but  in  case  there 
is  a  joinder  of  improper  parties  as  defendants,  the  defendant  im- 
properly joined  can  alone  demur.11     If  in  such  case  there  is  a  joint 

i  Powell  v.  Palmer,  45  App.  236.  For  demurrer  to  answer  in  equity, 

2  Isaacs  v.  Skrainka,  13  App.  593.  see  the  preceding  section. 

3  Justice  v.  Lancaster,  20  App.  559.  8  Rev.  Stat.  1899. 

4  State  ex  reL  v.  Rogers,  79  Mo.  288.  9  Hall  v.  Harrison,  21  Mo.  227;  Curry 

6  Kerr  v.  Simmons,  82  Mo.  269.  v.  Lackey,  35  Mo.  389;  Hickory  County 
e  St.  Louis  Gas  Light  Co.  v.  St.  Louis,    v.  Fugate,  143  Mo.  71. 

11  App.  55.  10  Hook  v.  Murdoch,  38  Mo.  224 

7  German  Bank  v.  Mulhall,  8  App.  «  Ashby  v.  Winston,  26  Mo.  210;  Al- 
558.  nutt  v.  Leper,  48  Mo.  319. 


§^  813,  S14.]  THE    DEITURREK.  419 

demurrer  filed  by  all  the  defendants,  it  should  be  overruled  as  to 
those  who  are  properly  made  parties; 1  the  joint  demurrer  cannot 
be  sustained.2  A  defendant  who  is  not  a  necessary  party  to  the 
suit  must  take  advantage  of  the  defect  by  demurrer,  since  if  he 
goes  to  trial  he  cannot  then  ask  to  have  his  name  stricken  out.3 
In  a  will  contest,  if  neither  the  executor  nor  the  devisees  are 
made  parties,  the  executor  may  enter  his  appearance,  be  made 
a  party  defendant,  and  may  then  demur  for  non-joinder  of  the 
devisees.4 

§  813.  Where  there  are  several  defendants. —  It  is  the  better 
practice  where  there  are  several  defendants,  and  all  of  them  de- 
sire to  demur,  that  each  should  file  a  separate  demurrer.  But  it 
is  not  essential  that  this  course  should  be  followed.  Thus,  where 
a  bill  in  equity  was  filed  against  an  administrator  and  five  other 
parties,  and  all  of  the  defendants  filed  a  joint  demurrer  on  the 
ground  that  no  cause  of  action  was  stated  against  any  of  them, 
and  also  on  the  ground  that  one  of  the  defendants  named  was 
not  a  necessary  or  proper  party,  the  trial  court  sustained  the  de- 
murrer. The  appellate  court,  however,  held  that  a  good  cause 
of  action  was  stated  against  the  administrator,  but  that  no  cause 
of  action  was  stated  as  against  the  other  parties,  and  that  the 
other  parties  were  not  necessary  nor  proper  parties;  that  while, 
for  this  reason,  the  court  below  erred  in  sustaining  the  demurrer 
as  to' all  the  defendants,  yet  it  might  perhaps  have  been  sustained 
as  to  all  the  defendants  except  the  administrator,  and  overruled  as 
to  him.  But  the  court  observes  that  the  proper  method  would 
have  been  for  each  defendant  to  have  filed  his  own  demurrer.5 

§  814.  General  demurrer, —  The  demurrer  must  distinctly 
specify  the  grounds  of  objection  to  the  pleading,  and  unless  it  does 
so  it  may  be  disregarded.6  A  defendant  may  demur  to  the  whole 
petition,  or  he  may  demur  to  any  one  or  more  of  the  causes  of  action 
stated  therein,  and  answer  the  residue.7  And  under  section  G09 8 
plaintiff  may  demur  to  the  whole  answer,  or  to  any  one  or  more 
of  the  defenses  stated  in  it,  and  reply  to  the  residue.  In  view 
of  these  provisions  it  is  clear  that,  speaking  strictly,  there  is  no 
longer  such  a  thing  in  this  state  as  a  general  demurrer;  but  a 

1  Ancell  v.  Cape  Girardeau,  48  Mo.        *  Eddie  v.  Parke,  31  Mo.  513. 

80;  Alnutt  v.  Leper,  48  Mo.  319;  Brown  5Swan  v.  Thompson,  36  App.  155, 

v.  Woods,  48  Mo.  330.  159. 

2  Bank  of  Missouri  v.  Young,  35  Mo.  6  Rev.  Stat.  1899,  sec.  599. 
371.  "  Rev.  Stat.  1899,  sec.  600. 

'Soeding  v.  Bartlett,  35  Mo.  90.  8Rev.  Stat.  1899. 


420  THE    DEMURRER.  [§§  815-817. 

demurrer  on  the  ground  that  the  petition  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  which  is  the  form  pre- 
vailing in  this  state  when  that  is  the  ground  of  demurrer,  is  prac- 
tically the  same  as  a  general  demurrer  at  common  law.1  Still,  if 
the  petition  does  state  a  cause  of  action,  objections  which  go 
to  some  minor  and  not  necessarily  fatal  imperfection  must  be 
specifically  stated.2  And  if  the  demurrer  sets  forth  as  one  ground 
of  objection  that  the  petition  does  not  state  sufficient  facts,  and 
also  contains  other  specific  objections  to  the  petition,  defendant 
will  not  be  restricted  to  the  latter,  unless  the  demurrer  itself  in 
express  terms  so  limits  him.3 

§  815.  Special  demurrer. —  The  practice  act  has  abolished 
the  old  special  demurrer  to  mere  matters  of  form.4 

§816.  What  a  general  demurrer  reaches. —  Where  the  pe- 
tition by  fair  and  reasonable  intendment  impliedly  states  a  cause 
of  action,  a  general  demurrer  to  it  will  not  reach  a  defective  or 
uncertain  allegation.5  If  the  petition  shows  b}7  implication  a 
contract  between  the  plaintiff  and  defendant,  and  a  right  of  re- 
covery thereon  in  the  plaintiff,  a  general  demurrer  will  not  lie.6 
Where  in  an  attachment  suit  plaintiff  files  a  motion  to  strike  out 
a  separate  plea  in  abatement  filed  by  one  of  the  defendants,  such 
motion,  which  is  in  the  nature  of  a  demurrer  to  the  plea,  must 
be  directed  against  that  which  is  objectionable  in  the  plea  and 
no  more ;  if  it  is  general,  and  the  plea  as  a  whole  is  good,  it  must 
be  overruled.7 

§  817.  Capacity  of  plaintiff  to  sue. —  Where  the  title  of  a  for- 
eign corporation,  and  of  the  plaintiff  as  its  receiver,  is  fully  and 
explicitly  set  forth  in  the  petition,  if  defendant  intends  to  ques- 
tion the  right  of  the  corporation  to  maintain  an  action  in  this 
state,  or  the  right  of  its  receiver  to  do  so,  it  must  be  done  by  a 
special  demurrer.8  In  a  suit  brought  by  an  infant,  the  failure 
of  the  petition  to  allege  the  appointment  of  a  guardian  or  next 
friend  to  prosecute  the  suit  constitutes  an  objection  which  goes 

i  See  Stephen,  Plead.  (3d  Am.  ed.),  3  See  Wilson  v.  Polk  County,  112  Mo. 

p.  82.     It  may  have  been  the  intention  126. 

of  the  f  ramers  of  the  Code  that  the  4  Bauer  v.  Wagner,  39  Mo.  385. 

particulars  in  which  the  petition  fails  5  State  ex  rel.  v.  Edmundson,  71  App. 

to  state  a  cause  of  action  should  be  172. 

pointed  out  in  the  demurrer;  but  such  6  Hallock  v.  Brier,  80  App.  331. 

is  not  the  general  practice  in  this  state.  7  Mo.  Glass  Co.  v.  Copeland  Sewing 

See  Darby  v.  Cabanne,  1   App.  126;  Machine  Co.,  88  Mo.  57. 

Wilson  v.  Polk  County,  112  Mo.  126.  8  Clark  v.  Lopp,  80  App.  542. 

2  Morgan  v.  Bouse,  53  Mo.  219,  221. 


§§  818-820.]  THE   DEMUEEEE.  421 

merely  to  the  legal  capacity  of  the  plaintiff  to  sue,  and,  if  no  ob- 
jection is  taken  to  it  before  the  trial,  it  is  such  an  imperfection 
as  is  cured  by  the  statute  of  jeofails.1 

§  818.  What  demurrer  admits. —  The  theory  of  a  demurrer 
is  that,  although  it  be  granted  that  all  the  material  facts  prop- 
erly alleged  in  the  petition  are  true,  yet  plaintiff  is  not  entitled 
to  recover.  It  logically  follows  that  for  the  purposes  of  the  de- 
murrer all  the  material  facts  which  are  well  and  properly 
pleaded  in  the  petition  must  be  taken  as  true.  And  such  is  the 
uniform  ruling  both  at  common  law  and  under  the  Code.2  A 
demurrer  to  the  petition  admits  all  the  material  facts  alleged.3 
And  the  party  demurring  cannot  afterwards  claim  that  the  facts 
stated  in  the  petition  are  improbable.4  A  demurrer  to  a  plea  of 
the  statute  of  limitations  admits  that  the  cause  of  action  did  not 
accrue  within  the  time  alleged  in  the  petition.5  If  the  pleading 
is  so  uncertain  that  no  intelligent  judgment  can  be  rendered  on 
it  when  admitted,  the  admission  amounts  to  nothing.6 

§  819.  Does  not  admit  conclusion  of  law. —  While  it  is  true 
that  a  demurrer  confesses  the  facts  which  are  well  pleaded  in  the 
pleading  against  which  it  is  directed,  yet  it  does  not  confess  a 
conclusion  of  law  drawn  from  those  facts ;  nor  does  a  demurrer 
to  the  petition  admit  the  plaintiff's  understanding  of  the  contract 
sued  on.7  And  even  statements  made  as  of  fact,  which  are  designed 
to  show  the  invalidity  of  a  statute,  are  not  to  be  taken  as  true 
like  other  statements  in  a  case.  A  public  law  cannot  be  thus 
confessed  away.8  Since  neither  an  averment  of  matter  of  law  is 
admitted  by  the  demurrer,9  nor  a  mere  conclusion  of  law,10  the 
statement  in  a  pleading  that  the  conveyance  was  fraudulent  is 
not  the  statement  of  a  fact,  and  is  not  admitted  by  a  demurrer.11 

§  820.  Same  —  The  rule  in  equity. —  "While  it  is  true,  as  above 
stated,  that  in  an  action  at  law  the  demurrer  admits  only  the 
facts,  but  does  not  admit  the  conclusions  of  law  which  the  pleader 
draws  from  those  facts,  yet  it  seems  that  in  an  equitable  cause 
the  demurrer  not  only  confesses  the  facts  pleaded  in  the  petition, 

1  Lyddon  v.  Dose,  81  App.  64  7  Blaine  v.  Geo.  Knapp  &  Co.,  140 

^Goodson  v.  Goodson,  140  Mo.  206;  Mo.  241;  State  ex  rel.  v.  Aloe,  152  Mo. 

Shields  v.  Johnson  County,  144  Mo.  76.  466;  Knapp  v.  St.  Louis,  153  Mo.  560; 

3  Dodson  v.    Lomax,   113  Mo.   555;  Same  Case,  156  Mo.  343. 

Verdin  v.  St.  Louis,  131  Mo.  26.  8  State  ex  rel.  v.  Aloe,  152  Mo.  466. 

4  Plant  Seed  Co.  v.  Michel  Plant  &  9  Bradley  v.  Franklin  County,  65 
Seed  Co.,  23  App.  579.  Mo.  638. 

5  State  to  use  v.  Finn,  19  App.  560.  10  Kleekainp  v.  Meyer,  5  App.  444. 

6  State  ex  reL  v.  Everett,  52  Mo.  89.       u  Dannan  v.  Coleman,  8  App.  595. 


422  TIIE   DEMURRER.  [§§  821-824. 

but  also  the  equities  that  arise  from  the  facts  as  such  equities  are 
stated  in  the  petition.1 

§  821.  Same  —  Illustrative  cases. —  In  an  action  on  the  bond 
of  a  county  collector  for  money  alleged  to  have  been  collected 
by  him  as  state  revenue  and  for  the  state  interest  fund,  the  peti- 
tion charged  that  in  1891  and  1892  the  taxes  were  levied  against 
two  railroads  named  in  the  petition,  that  the  taxes  were  properly 
entered  upon  the  tax-books  for  those  years,  that  the  tax-books 
wore  delivered  to  the  collector,  that  the  taxes  were  thereafter 
collected  by  him,  and  that  he  had  failed  to  pay  them  into  the 
state  treasury.  A  demurrer  having  been  interposed  to  the  peti- 
tion, it  was  held  that  by  demurring  the  defendants  admitted  all 
the  above  allegations  to  be  true  and,  therefore,  they  were  in  no 
position  to  deny  that  the  railroad  companies  were  the  owners  of 
the  property  with  which  they  were  assessed.2  A  demurrer  to 
the  petition  in  an  action  of  libel  confesses  the  malice  and  falsity 
of  the  charge,  and  also  that  the  meaning  supplied  by  the  innu- 
endo is  the  true  meaning  of  the  words  charged  to  be  libelous.3 
If,  in  a  suit  to  enjoin  the  infringement  of  a  trade-mark,  the  pe- 
tion  alleges  that  by  reason  of  the  acts  of  defendant  complained 
of  persons  were  misled,  it  cannot  be  argued  that  persons  would 
not  be  likely  to  be  misled  by  the  acts  specified,  since  the  demur- 
rer admits  that  they  were  so  misled.4 

§  822.  Admission  applies  only  to  case  at  bar. —  While  a  de- 
murrer admits  matters  that  are  well  pleaded,5  yet  such  admission 
is  only  for  the  purpose  of  deciding  the  questions  which  are  raised 
by  the  demurrer.  The  statements  in  the  petition  demurred  to 
are  not  evidence  on  the  question  of  damages  or  on  the  general 
issue.6 

§  823.  But  is  effective  in  appellate  court. —  Where  defendant 
stands  on  his  demurrer  when  it  is  overruled,  and  appeals  on  the 
judgment,  he  is  as  much  bound  in  the  appellate  court  by  the  ad- 
missions of  the  demurrer  as  he  was  in  the  trial  court.7 

§  824.  Assessing  the  damages. —  Where  judgment  is  rendered 
for  plaintiff  upon  defendant's  demurrer,  plaintiff's  cause  of  action 
is  admitted  as  stated  in  his  pleading,  and  the  only  matter  for  the 
jury  on  an  inquiry  is  to  ascertain  the  amount  of  damages.8     But 

i  Williams  v.  Gerber,  75  App.  18.  5  Warder  v.  Evans,  2  Mo.  205;  Mo 

2  State  ex  reL  v.  Seibert,  148  Mo.  408.  Kinzie  v.  Mathews,  59  Mo.  99. 
J  McGinnis  v.  Knapp,  109  Mo.  131.  «  McKinzie  v.  Mathews,  59  Mo.  99. 

«  Plant  Seed  Co.  v.  Michel  Plant  &       7  Wolff  v.  Ward,  104  Mo.  127. 
Seed  Co.,  23  App.  579.  8  Steamboat  Reveille  v.  Case,  9  Mo. 


§§  825,  826.]  THE   DEHUKKER.  423 

if  the  amount  of  damages  is  liquidated  or  is  fixed  by  the  statute, 
there  is  nothing  left  but  for  the  court  to  enter  the  proper  judg- 
ment.1 

§  825.  The  demurrer  must  specify  the  grounds, — The  statute 
provides  that  the  demurrer  must  distinctly  specify  the  grounds 
of  objection  to  the  pleadings,  and  that  unless  it  does  so  it  may  be 
disregarded.2  The  word  "  may,"  in  this  section,  means  "  should," 3 
and  if  the  demurrer  does  not  set  forth  the  grounds  upon  which 
it  is  based,  neither  the  trial  court  nor  the  appellate  court  will 
take  notice  of  defects  not  specified.4  If  the  trial  court  sustains 
the  demurrer  for  reasons  not  set  forth  in  it,  the  judgment  will 
be  reversed  by  the  appellate  court.5  If  the  petition  fails  to  state 
a  cause  of  action,  a  demurrer  assigning  this  ground  in  the  lan- 
guage of  the  statute  is  sufficient.6  But  if  the  petition  does  state 
a  cause  of  action,  any  objections  which  go  to  some  minor  im- 
perfections, which  are  not  necessarily  fatal,  must  be  specifically 
stated  in  the  demurrer.7  If  the  demurrer  is  based  upon  the 
ground  that  the  petition  does  not  state  a  cause  of  action,  and  it 
also  sets  forth  other  specific  objections  to  the  petition,  the  de- 
fendant will  not  be  restricted  to  the  specific  objections,  unless 
he  is  so  limited  by  the  very  terms  of  the  demurrer  itself.8  A  de- 
murrer to  an  answer  on  the  ground  that  the  facts  set  out  in  it 
constitute  no  defense  to  the  action  is  sufficient.9 

§  826.  What  objections  maybe  raised  by  demurrer.— That 
a  demurrer  may  lie,  the  defect  must  appear  upon  the  face  of  the 
pleading.  Therefore,  where  a  demurrer  is  based  upon  the  ground 
that  another  action  is  pending  between  the  same  parties  for  the 
same  cause  of  action,  and  no  such  facts  appear  in  the  petition,  it 
will  be  overruled.10  Under  the  code  practice  there  are  only  two 
things  which  are  fatal  to  a  suit.  The  first  is  that  the  petition 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action ;  the 

502;  Scott  v.  Mo.  Pac.  R.  Co.,  38  App.  sCneely  v.  Wells,  33  Mo.  106. 

523.  6  Morgan  v.  Bouse,  53  Mo.  219;  Darby 

1  Scott  v.  Mo.  Pac.  R.  Co.,  38  App.  v.  Cabanne,  1  App.  126;  Wilson  v.  Polk 

523.     See  §  822,  ante.  County,  112  Mo.  126. 

-'Rev.  Stat.  1899,  sec  599.  7  Morgan  v.  Bouse,  53  Mo.  219. 

^McClurg  v.  Phillip;.  49  Mo.  315;  8  Wilson  v.  Polk  County,  112 Mo.  126. 

Roberts  v.  Bartlett,  26  App.  611.  9  German  Bank  v.  Mulhall,  8  App. 

*  Jamison  v.  Copber,  35  Mo.  483;  Al-  55& 

nutt  v.  Leper,  48  Mo.  319;  Brumley  v.  10  Arthur  v.  Rickards,  48  Mo.  298. 
Golden,  27  App.  160;  Hickory  County 
t.  Fugate,  143  Mo.  71. 


!•_' 1  THE    DEMUKREK.  [§§827,828. 

second-,  that  the  court  has  no  jurisdiction  over  the  subject-matter 
of  the  suit.1  If,  where  an  action  is  fou#led  on  an  account,  the 
ion  does  not  contain  the  account,  and  it  is  not  annexed  to 
the  petition,  a  demurrer  will  lie.2  A  demurrer  will  lie  to  an  in- 
terplead but  the  objection  that  an  interplea  is.  not  verified  can- 
not be  taken  by  demurrer,  though  the  defect  may  be  reached  by 
a  motion  to  strike  out.4 

§  827.  Decisions  applying  the  rule, —  The  fact  that  an 
amended  petition  sets  forth  a  different  cause  of  action  from  that 
declared  on  in  the  original  petition  cannot  be  reached  by  de- 
murrer.5 Where  a  minor  sues  by  his  father,  his  natural  guardian, 
for  the  purpose  of  having  a  new  trustee  appointed,  and  it  does 
not  appear  from  the  petition  that  the  father  has  given  bond  as 
guardian,  a  demurrer  on  that  ground  will  not  lie.6  Where  upon 
a  statutory  arbitration  an  award  has  been  made,  and  a  motion  is 
filed  in  the  circuit  court  for  a  judgment  on  the  award,  the  party 
against  whom  the  award  is  made  has  the  right  to  object  to  the 
sufficiency  of  the  motion  by  a  writing  in  the  nature  of  a  de- 
murrer; and  if  his  objection  is  not  well  taken,  judgment  will  be 
entered  on  the  award.7  In  an  action  for  a  breach  of  contract, 
if  the  petition  in  terms  alleges  that  the  contract  was  made  by 
the  defendant  with  an  agent  of  the  first-mortgage  bond-holders 
of  the  plaintiff,  it  does  not  appear  that  the  plaintiff  has  any  in- 
terest in  the  cause  of  action,  and  a  demurrer  to  the  petition  is 
properly  sustained.8  If  a  bill,  filed  for  a  specific  performance 
of  a  contract  for  the  sale  of  land,  shows  upon  its  face  that  the 
contract  is  within  the  statute  of  frauds,  defendant  may  raise  the 
point  by  demurrer.9 

§  828.  Demurrer  to  prayer  for  relief. —  A  demurrer  does  not 
lie  to  the  prayer  for  relief.10  Nor  will  it  lie  because  the  relief 
prayed  is  beyond  the  power  of  the  court  to  grant,  or  because  the 
relief  prayed  for  is  not  proper  upon  the  facts  pleaded.  What- 
ever the  prayer  may  be,  the  court  will  look  to  the  whole  petition 
and  grant  such  relief  as  the  facts  pleaded  will  authorize.11 

i  Elf  rank  v.  Seiler,  54  Mo.  134.  8  Carondelet  Gas  Light  Co.  v.  Pratt, 

2  Graves  v.  Pierce,  53  Mo.  423.  7  App.  573. 

3  Chase  v.  Alexander,  6  App.  505.  9  Chambers  v.  Lecompte,  9  Mo.  575. 
*  Scott-Force  Hat  Co.  v.  Hombs,  127  10  Saline   County  v.  Sappington,   64 

Mo.  392.  Mo.  72. 

s  Daudt  v.  Machens,  13  App.  592.  »  Liese  v.  Meyer,  143  Mo.  547.    See 

e  Temple  v.  Price,  24  Mo.  288.  also  §  839,   post;   and    consult  also 

~  Shores  v.  Bowen,  44  Mo.  396.  ch.  XIV. 


§  829.]  THE   DEMUEEEK.  425 

§  829.  What  objections  may  be  raised  —  Misjoinder  of 
causes  in  one  count. —  The  fifth  subdivision  of  section  598,1 
specifying  as  one  cause  of  demurrer  that  several  causes  of  action 
have  been  improperly  united,  does  not  apply  to  the  manner  of 
joinder,  that  is  to  the  improper  commingling  in  one  count  of 
matters  which  might  be  properly  united  in  a  petition  by  dif- 
ferent counts,  but  to  the  substantive  error  of  uniting,  whether 
in  one  count  or  several,  matters  which  cannot  be  united  at  all.2 
The  former  error  should  be  reached  by  motion  to  elect  or  to  strike 
out;  the  latter  defect  should  be  reached  by  demurrer,  if  the  de- 
fect appears  upon  the  face  of  the  petition.3  In  the  cases  cited 
no  mention  is  made  of  the  earlier  cases  of  Ederlin  v.  Judge*  and 
Clark  v.  Hannibal  &  St.  J.  R.  Co.,5  where  it  is  held  that  the  de- 
fect that  several  causes  of  action  are  joined  in  the  same  count 
may  be  taken  advantage  of  by  demurrer.  But  these  cases  can 
no  longer  be  held  to  be  authoritative,  though  there  is  an  intima- 
tion to  a  like  effect  in  Mitchner  v.  Holmes.6  Nor  is  the  more 
recent  case  of  Thompson  v.  School  District1  referred  to  in  the 
cases  cited  above.  But  it  is  to  be  noted  that  in  that  case  plaint- 
iff not  only  united  in  one  count  two  separate  causes  of  action 
but  different  causes  of  action  against  two  separate  defendants. 
It  is  true  that  the  decision  is  cited  as  an  authority,  and  appar- 
ently on  the  point,  in  a  recent  case  before  the  court  of  appeals, 
where  it  is  held  that  a  demurrer  is  the  only  proper  mode  of 
raising  the  objection  that  two  causes  of  action  of  the  same  class 
are  blended  in  one  count.8  But  it  must  be  considered  that  the 
weight  of  authority  is  adverse  to  this  view.  In  fact,  in  one  of 
the  earlier  cases  mentioned  above,9  the  court  probably  only  in- 
tended to  decide,  what  is  well  stated  in  Brown  v.  Kansas  City, 
St.  J.  &  C.  B.  R.  Co.,10  that  what  constitutes  an  improper  and  de- 
murrable union  in  one  count  of  causes  of  action  is  the  union  of 
incongruous  causes  of  action  which  cannot  be  united  in  the 
same  petition.     A  demurrer  is  the  proper  method  of  raising 

i  Rev.  Stat.  1899.  Christal  v.  Craig,  80  Mo.  367;  State  ex 

2Mulholland    v.   Rapp,  50  Mo.   42;  re1,  v.  Tittmann,  103  Mo.  553. 

Fadley  v.  Smith,  23  App.  87;  Wilson  4  36  Mo.  350. 

v.  St.  Louis  &  S.  F.  R  Co.,  67  App.  5  36  Mo.  202. 

443;  State  ex  reL  v.  Tittmann,  103  Mo.  6 117  Mo.  185. 

55:j;   Ferguson  v.  Davidson,  65  App.  771Mo.  495. 

193.  8  Sinclair  v.  Mo.,  K.  &  T.  R.  Co.,  70 

3  Otis  v.  Mechanics'  Bank,  35  Mo.  App.  588. 

128;  Mulholland  v.  Rapp,  50  Mo.  42;  » Ederlin  v.  Judge,  36  Mo.  350. 

10  20  App.  427. 


420  THE    DEilUKREB.  [§§  830-832. 

that  question.  In  a  later  decision  of  the  court  of  appeals  it  is 
Baid  that  demurrer  is  the  proper  method  of  raising  the  question 
of  improper  joinder  in  the  same  count  of  causes  which  cannot 
be  joined  in  the  same  petition,  but  which  are  of  such  a  nature 
that  objection  must  be  made  before  the  trial.1  So  that  it  may 
be  considered  as  settled  that  the  question  of  whether  or  not  a 
demurrer  will  lie,  depends,  not  so  much  upon  whether  the  dif- 
ferent causes  of  action  are  stated  in  one  count  or  several  counts, 
but  whether  the  different  causes  stated  are  such  as  do  not  belong 
in  the  same  one  of  the  different  classes  specified  in  section  598. 
Under  the  rules  above  stated  it  is  evident  that  a  demurrer  will 
not  lie  to  a  petition  in  an  action  to  enforce  the  payment  of  de- 
linquent taxes  on  the  ground  that  the  petition  unites  in  one 
count  the  taxes  for  several  years.2 

§  830.  Where  two  causes  of  action  are  combined  in  one  count, 
and  some  of  the  defendants  are  liable  on  one  cause  of  action  but 
not  on  both,  the  defect  may  be  reached  by  demurrer  or  by  mo- 
tion in  arrest,  since  one  ground  of  demurrer  is  that  a  party, 
plaintiff  or  defendant,  is  not  a  necessary  party  to  a  complete  de- 
termination of  the  action.  But  where  a  cause  of  action  on  a  note 
is  joined  in  the  same  count  with  a  cause  of  action  for  money 
alone  which  was  the  consideration  of  the  note,  a  demurrer  will 
not  lie ;  the  defect  must  be  reached  by  a  motion  to  strike  out.3 

§  831.  Where  there  is  an  agreement  to  pay  a  given  sum  of 
money,  and,  in  case  it  becomes  necessary  to  sue  for  the  amount 
by  reason  of  failure  to  pay  the  same  on  maturity,  to  pay  a  rea- 
sonable attorney's  fee  in  addition,  there  is  but  one  contract  with 
two  stipulations,  and  a  demurrer  will  not  lie  because  the  petition 
contains  but  one  count.  Had  plaintiff  brought  his  action  on  one 
stipulation,  omitting  the  other,  he  might  have  barred  himself 
from  a  subsequent  action  on  the  remaining  stipulation.4 

§  832.  What  objections  may  he  raised  — Statute  of  limita- 
tions.—Both  at  common  law  and  under  the  Code  the  defense  of 
the  statute  of  limitations  must  be  raised  by  answer,  except  in 
those  cases  where  the  statute  confers  title,  in  which  case  it  be- 
comes available  under  the  general  issue  or  general  denial,5  as  in 

i  Fadley  v.  Smith,  23  App.  87.  4  Comstock  v.  Davis,  51  Mo.  569. 

2  State  ex  rel.  v.  Tittmann,  103  Mo.        See  also  §§  835,  836. 

553.  ^Benoist  v.  Darby,  12  Mo.  196;  Bell 

3  Farmers'  Bank  v.  Bayliss,  41  Mo.  v.  Clark,  30  App.  224;  Orr  v.  Rode,  101 
274.  The  principle  is  also  recognized  Mo.  387;  Stoddard  County  v.  Malone, 
in  Thompson  v.  School  District,  71  Mo.  115  Mo.  508;  Maddox  v.  Duncan,  62 
493.  App.  474 


§  833.]  THE   DEMURRER.  427 

actions  of  ejectment.1  Defendant  must  set  up  the  defense  and 
make  it  at  the  trial;  he  cannot  raise  the  question  for  the  first 
time  in  the  supreme  court.2  It  cannot  ordinarily  be  taken  ad- 
vantage of  by  demurrer; 3  though  if  all  the  necessary  facts  appear 
upon  the  face  of  the  petition,  the  defense  may  be  made  by  de- 
murrer,4 as  in  cases  in  which  the  statute  creates  a  bar  without 
any  exception.5  But  the  defense  can  be  raised  by  demurrer  only 
where  it  clearly  appears  that  plaintiff's  case  has  been  fully 
stated,  and  that,  being  so  stated  no  recovery  can  be  had.6  In  an 
action  to  vacate  a  judgment  on  the  ground  that  it  was  fraudu- 
lently obtained,  and  to  divest  defendants  of  their  title  acquired 
under  the  judgment,  it  appeared  upon  the  face  of  the  petition 
that  more  than  twenty  years  had  elapsed  since  the  right  of  ac- 
tion had  accrued,  and  no  reason  was  alleged  why  the  action  was 
not  commenced  within  the  twenty  years.  A  demurrer  to  this 
petition  was  sustained.7  In  order  to  avail  himself  of  the  bar  of 
the  statute  when  the  facts  appear  upon  the  face  of  the  petition, 
the  defendant  must  demur  specially;  a  general  demurrer  will 
not  do.8 

§  833.  What  objections  must  be  raised  Iby  demurrer.— If  de- 
fects which  are  by  the  statute  made  grounds  for  demurrer 9  appear 
upon  the  face  of  the  petition,  they  cannot  be  taken  advantage  of 
by  answer.10  But  this  rule  does  not  apply  to  a  failure  to  state  a 
cause  of  action,  nor  to  the  objection  that  the  court  has  no  juris- 
diction over  the  subject-matter.11  If  the  defendant  does  not  demur, 
but  confesses  and  avoids,  thereby  pleading  as  though  the  peti- 
tion presented  proper  issues,  he  waives  the  objection  that  the 
petition  does  not  sufficiently  aver  the  constitutive  facts.12  If  the 
answer  attempts  to  set  up  the  defense  of  accord  and  satisfaction, 

i  Nelson  v.  Brodhack,  44  Mo.  596;        7  Heffernan  v.  Howell,  90  Ma  344. 
Fulkerson    v.    Mitchell,   82    Mo.    13;        8  State  ex  reL  v.   Spencer,  79  Mo. 

Holmes  v.  Kring,  93  Mo.  452;  Stocker  314. 

v.  Green,  94  Mo.  280;    Fairbanks  v.        9  Rev.  Stat.  1899,  sec.  598. 

Long,  91  Mo.  628;  Campbell  v.  Lac-  10  Bender  v.  Zimmerman,  135  Mo.  53. 
lede  Gas  Light  Co.,  84  Mo.  352.  M  Nicholson  v.  Golden,  27  App.  132; 

2  Wynn  v.  Cory,  48  Mo.  346.  Ryors  v.  Pryor,  31  App.  555;  Heman 

3 Smith  v.  Dean,  19  Mo.  63.  v.  Glann,  129  Mo.  325. 

4  State  to  use  v.  Bird,  22  Mo.  470.  12  Banchor  v.  Gregory,  9  App.  102. 

s State  to  use  v.  Bird,  22  Mo.  470;  This  is  a  case  where  the  answer  sup- 

Maddox    v.    Duncan,    62    App.    474;  plied  the  averments  which  plaintiff 

Henoch  v.  Chaney,  61  Mo.  129.  failed  to  make  in  his  petition.    See 

«  McNair  v.  Lott,  25  Mo.  182;  Boyce  §  881,  post. 
v.  Christy,  47  Mo.  70. 


1:28  THE    DEMURKER.  [§§  834,  835. 

but  fails  to  aver  that  the  thing  assigned  was  accepted  by  plaint- 
iff in  full  satisfaction,  yet  if  plaintiff,  instead  of  demurring,  files 
a  reply  and  goes  to  trial  on  the  issue,  he  cannot  afterwards  ob- 
ject to  the  answer.1  An  objection  that  an  action  on  a  special 
tax-bill  should  have  been  brought  in  the  name  of  the  city  to  the 
use  of  the  plaintiff,  instead  of  directly  by  the  plaintiff,  is  one 
which  appears  upon  the  face  of  the  petition  and  is  waived  if  not 
raised  by  demurrer.2  So,  too,  the  objection  that  a  foreign  ex- 
ecutor or  administrator  has  no  capacity  to  sue  must  be  raised  by 
a  special  demurrer,  if  it  is  apparent  upon  the  face  of  the  petition; 
if  not  so  raised,  the  objection  is  waived.3  Where,  upon  the  re- 
moval of  an  assignee,  an  action  is  brought  by  his  successor  upon 
his  official  bond,  and  defendants  desire  to  object  upon  the  ground 
that  the  creditors,  and  not  the  assignee,  are  the  proper  parties  to 
sue,  they  must  make  the  objection  by  demurrer;  otherwise  they 
waive  it.4  The  objection  that  the  plaintiff  has  an  adequate  rem- 
edy at  law  must  be  made  by  demurrer.5 

§  834.  Same  —  Misjoinder  or  non-joinder  of  parties.— Where 
it  is  apparent  upon  the  face  of  the  petition  that  there  is  a  mis- 
joinder of  parties  plaintiff,  the  objection  must  be  made  by  de- 
murrer;61 but  if  defendant  answers  over,  he  cannot  subsequently 
withdraw  his  answer  and  demur  on  that  ground.  Nor  can  the 
court  by  reserving  such  question  on  the  demurrer  suspend  the 
operation  of  the  statute.7  And  if  in  such  case  the  defendant's 
objection  to  the  misjoinder  is  blended  with  matter  pleadable 
only  by  answer,  the  objection  of  a  misjoinder  is  not  properly 
raised,  and  will  be  treated  as  waived.8  The  above  rule  applies 
to  the  objection  that  the  petition  is  defective  by  reason  of  a  non- 
joinder of  parties ; 9  or  that  some  of  the  plaintiffs  are  improperly 
made  parties; 10  or  that  one  is  improperly  joined  as  a  defendant.11 
And  the  rule  applies  to  an  interplea 12  and  to  a  counter-claim.13 

§  835.  Same  —  Misjoinder  of  causes. —  The  objection  that 
several  causes  of  action  have  been  improperly  united  in  one  pe- 

i  Oil  Well  Supply  Co.  v.  Wolfe,  127        The  statute  referred  to  is  Rev.  Stat. 

Mo.  616.  1899,  sec.  602. 

2  Galbreath    v.    Newton,    45    App.        8  Taber  v.  Wilson,  34  App.  89. 
312.  9  Kerr  v.  Bell,  44  Mo.  120. 

3  Gregory    v.  McCormick,  120    Mo.       10  Russell  v.  Def  ranee,  39  Ma  506. 
657.  ii  Boland  v.  Ross,  120  Mo.  208. 

4  State  to  use  v.  Hunt,  46  App.  616.       12  Scott-Force  Hat  Co.  v.  Hombs,  127 
s  Block  v.  Chase,  15  Mo.  344  Mo.  392. 

6  Dodson  v.  Lomax,  113  Mo.  555.  13  Winton  State  Bank  v.  Harris,  54 

7  Finney  v.  Randolph,  68  App.  557.       App.  156. 


§§  836,  837.]  THE   DEMUEKER.  429 

tition  must  be  raised  by  demurrer  or  it  will  be  waived ;  it  can- 
not be  taken  advantage  of  by  motion  in  arrest.1 

§  836.  Same  —  Misjoinder  of  parties  and  of  causes  of  action. 

An  objection  that  there  is  both  a  misjoinder  of  parties  and  of 
causes  of  action  must  be  made  either  by  demurrer  or  answer.2 
"Where  the  action  is  by  a  husband  and  wife,  and  the  petition  al- 
leges that  defendant  engaged  plaintiffs  to  take  care  of  his  invalid 
son,  it  states  a  cause  of  action,  and  a  demurrer  will  not  lie  on  the 
ground  of  misjoinder  of  the  wife,  although  the  services  per- 
formed by  the  wife  were  such  that,  under  the  common  law,  the 
compensation  for  them  would  have  belonged  to  the  husband.3 

§837.  No  cause  of  action  stated. —  Under  the  sixth  subdi- 
vision of  section  598,4  the  cause  of  demurrer  is  that  the  petition 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action.5  The 
test  of  the  sufficiency  of  a  petition  on  general  demurrer  is  whether 
the  facts  therein  stated,  if  true,  show  a  cause  of  action  against 
the  demurring  defendant.6  To  sustain  a  demurrer  on  this  sixth 
ground,  the  statement  of  facts  must  be  such  that,  admitting  them 
all  to  be  true,  the  court  is  warranted  in  saying  that  they  furnish 
no  cause  of  action  against  the  defendant.7  The  demurrer  will 
not  be  sustained  merely  because  the  petition  is  badly  and  inar- 
tistically  drawn,  unless  it  is  so  wholly  wanting  in  necessary  aver- 
ments that  it  entirely  fails  to  state  a  cause  of  action.8  If  it  de- 
fectively states  a  cause  of  action,  it  is  good  on  general  demurrer.9 
It  is  only  where  it  is  so  wholly  wanting  in  necessary  averments 
that  it  fails  to  state  any  cause  of  action  whatever  that  a  demur- 
rer will  lie.10  But  a  demurrer  will  lie  if  it  is  impossible  to  deter- 
mine from  the  allegations  of  the  petition  whether  or  not  the 
plaintiff  has  a  cause  of  action.11 

1  Union  Bank  v.  Dillon,  75  Mo.  380;  tute  a  defense  to  the  pleading  which 
Baker  v.  Raley,  18  App.  562;  Blair  v.  they  are  designed  to  meet.  Howell  v. 
Chicago  &  Alton  R.  Co.,  89  Mo.  383.  Stewart,  54  Mo.  400. 

2  Rothschild  v.  Lynch,  76  App.  339;  6Wetmore  v.  Crouch,  55  App.  441; 
Thompson  v.  School  District,  71  Mo.  495.  State  ex  reL  v.  Pohlman,  60  App.  444; 

3  Neimeyer  v.  Neimeyer,  70  App.  609.  Ferguson  v.  Davidson,  65  App.  193. 

4  Rev.  Stat.  1899.  7  Darby  v.  Cabanne,  1  App.  126. 

5  As  section  609  provides  that  de-  8  State  ex  reL  v.  Carroll,  63  Mo.  156; 
murrers  to  the  answer  or  reply  shall  Ferguson  v.  Davidson,  65  App.  193. 
be  governed  by  the  rules  prescribed  in  9  Aurora  Water  Co.  v.  Aurora,  129 
relation  to  demurrers  to  petitions,  a  Mo.  540. 

demurrer  will  lie  to  new  matter  in  the       10  Verdin  v.  St.  Louis,  131  Mo.  26. 
answer  or  reply  if  the  averments  do       n  Embree  v.  Patrick,  72  Mo.  173.  See 
not  set  forth  facts  sufficient  to  consti-    §  841,  post. 


430  THE   DEMUBBEB.  [§§  838-841. 

§  S3S.  Same  —  Cases  applying  tlio  rule.—  Where  it  appears 
from  the  allegations  of  the  petition  itself  that  all  the  material 
issues  of  fact  tendered  for  trial  are  the  same  as  those  tendered, 
joined  and  adjudicated  in  a  former  case  between  the  same  parties, 
it  fails  to  state  an  existing  cause  of  action,  and  is  for  that  reason 
demurrable.1  In  a  suit  for  partition,  if  the  petition  fails  to  set 
forth  the  ownership  of  each  several  interest  in  the  land  sought 
to  be  divided,  and  contains  no  averment  that  the  owner  of  any 
portion  was  unknown,  or  that  there  was  any  difficulty  in  point- 
ing out  the  owner  and  defining  his  interest,  it  is  demurrable.2 

§  839.  No  cause  of  action  stated  —  Relief. —  A  demurrer  will 
not  lie  on  the  ground  that  the  petition  does  not  state  a  cause  of 
action,  notwithstanding  the  fact  that  the  relief  prayed  for  cannot 
be  granted,  if  the  facts  alleged  authorize  the  granting  of  any  re- 
lief, since  the  court  is  not  confined  to  the  prayer  in  granting 
relief,  but  may  look  to  the  whole  petition,  and  grant  any  relief 
consistent  with  the  case  made  by  the  evidence  and  embraced 
within  the  issues.3  But  if  the  petition  is  framed  with  a  view  to 
equitable  relief,  and  the  facts  set  forth  do  not  warrant  such  re- 
lief, a  demurrer  will  lie;  as,  for  instance,  where  the  petition 
seeks  for  an  account,  an  injunction,  and  the  appointment  of  a 
receiver,  as  though  a  partnership  existed  between  the  parties,  and 
at  the  same  time  sets  out  a  contract,  which  shows  that  there  is 
no  partnership.4 

§  840.  Time  of  filing  demurrer. —  If  the  demurrer  is  not  filed 
until  the  trial  has  begun  and  while  it  is  pending,  it  is  properly- 
stricken  out.5 

§  841.  Action  on  demurrer. —  In  case  a  petition  is  good  in 
part,  a  general  demurrer  should  be  overruled,  unless  the  good 
part  is  so  intermingled  with  the  bad  as  to  vitiate  the  whole.  Thus, 
in  an  action  to  recover  for  false  representations  made  by  defend- 
ant as  to  the  credit  of  another,  if  the  petition  charges  both  oral 
and  written  representations  to  have  been  made  by  the  defendant, 
a  general  demurrer  to  the  petition  cannot  be  sustained,  if  a  good 
cause  of  action  is  stated  based  upon  the  written  assurance.6  If 
the  petition  contains  several  counts,  and  a  demurrer  is  interposed 
to  the  petition  as  a  whole,  if  either  count  of  the  petition  states  a 

iGivens  v.  Thompson,  110  Mo.  432.  a  demurrer  does  not  lie  to  the  prayer, 

2  Rogers  v.  Miller,  48  Mo.  378.  see  §  828,  ante. 

3  Northcroft  v.  Martin,  28  Mo.  469;  In  this  connection,  consult  chapter 
Easley  v.  Perrill,  37  Mo.  361 ;  Crosby  v.  XIV. 

Farmers'  Bank,  107  Mo.  436.  5  Fadley  v.  Smith,  23  App.  87. 

*  Mulholland  v.  Rapp,  50  Mo.  42.  That        •  Clark  v.  Edgar,  84  Mo.  106. 


§§   842-844.]  THE   DEMURRER.  431 

good  cause  of  action  the  demurrer  must  be  overruled.1  In  de- 
termining the  demurrer  the  trial  court  will  not  look  at  the  exhibits, 
unless  they  are  made  a  part  of  the  pleading  by  being  inserted 
therein;2  nor  will  it  look  beyond  the  demurrer  for  reasons  why 
it  should  be  sustained.3  But  if  the  contract  sued  on  is  in  writing, 
and  is  fully  set  out  in  the  petition,  it  will  then  be  considered  in 
connection  with  the  other  averments  in  the  petition  in  passing 
upon  its  sufficiency.* 

§  842.  Sufficiency  of  prior  pleading.— The  rule  of  the  com- 
mon law  that  a  demurrer  to  any  subsequent  pleading  brings  up 
the  sufficiency  of  the  pleadings  which  have  preceded  the  demur- 
rer, and  that  judgment  must  be  given  against  the  party  who 
committed  the  first  error,5  is  also  the  rule  under  the  Code,  since 
it  is  not  a  technical  one,  but  necessarily  incidental  to  every  sys- 
tem, and  one  which  may  be  successfully  invoked  whenever  the 
court  is  advised  by  demurrer  or  motion  of  any  substantial  error 
or  defect  in  a  pleading,  such  as  would  render  a  verdict  nugatory 
if  founded  upon  it.6  And  the  rule  applies  to  a  motion  to  strike 
out,  as  well  as  to  a  demurrer.7 

§  843.  Demurrer  not  acted  on. —  Where  a  demurrer  has  been 
filed  and  no  judgment  is  rendered  thereon,  but  the  parties  after- 
ward go  to  trial  on  the  merits,  it  will  be  presumed  that  the  de- 
murrer was  withdrawn.8  So,  too,  if  the  demurrer  is  filed  and  is 
not  disposed  of,  and  defendant  afterwards  files  an  answer,  and 
the  case  is  tried,  this  amounts  to  a  waiver  of  the  demurrer.9 

§  844.  Effect  of  sustaining  the  demurrer, —  If  the  demurrer 
is  sustained,  and  the  plaintiff  does  not  see  fit  to  amend  his  peti- 
tion, it  is  necessary  that  judgment  should  be  rendered  in  favor 
of  the  defendant  before  the  plaintiff  can  pursue  any  further 
remedy.10  Where  a  defendant  has  filed  special  pleas  in  addition 
to  pleading  the  general  issue,  and  demurrers  nave  been  sus- 
tained to  the  special  pleas,  he  does  not  by  going  to  trial  on  the 
general  issue  waive  his  right  to  have  the  court's  action  upon  the 

i  Mo.  Pac.  R  Co.  v.  McLiney,  32  App.  6  Potter    v.    Herring,    57  Mo.   184; 

166.  Paxon  v.  Talmage,  87  Mo.  13. 

2Tesson  v.  Tesson,  11  Mo.  274;  Cas-  7  Paxon  v.  Talmage,  87  Mo.  13. 

satt  v.  Vogel,  14  App.  317;  Hickory  8  Sweeney  v.   Willing,  6   Mo.    174; 

County  v.  Fugate,  143  Mo.  71.  Dickey  v.  Malechi,  6  Mo.  177. 

3  Hickory  County  v.  Fugate,  143  Mo.  9  Dunklin  County  v.  Clark,  51  Mo.  GO. 
71.  io  State  v.  Gregory,  38  Mo.  501.     The 

4  Blaine  v.  George  Knapp  &  Co.,  140  rule  is  the  same  in  civil  as  in  criminal 
Mo.  241.  cases. 

&  Marshal  v.  Platte  County,  12  Mo.  88. 


432  THE   DEMURRER.  [§§  845,  846. 

demurrers  reviewed,  if  he  has  properly  saved  his  exceptions  to 
the  court's  action.1  So  when  the  answer  consists  of  a  general 
denial  and  also  contains  an  affirmative  defense  based  on  new 
matter,  defendant  does  not,  by  proceeding  to  trial  on  the  gen- 
eral denial  after  a  demurrer  has  been  sustained  to  the  affirma- 
tive defense,  waive  his  right  to  insist  that  the  ruling  of  the  trial 
court  in  sustaining  the  demurrer  was  erroneous.2  If,  on  the  sus- 
taining of  a  demurrer  as  to  one  of  two  defendants,  the  petition 
has  been  dismissed  as  to  him,  but  it  was  not  demurred  to  or  ad- 
judged insufficient  as  to  the  other  defendant,  it  is  not  necessary 
that  an  amended  petition  should  be  filed  in  order  to  proceed 
against  the  latter.3 

§  845.  Effect  of  sustaining  —  Third  pleading. —  If  three  suc- 
cessive petitions,  answers  or  replies  are  adjudged  insufficient  in 
whole  or  in  part  upon  demurrer,  or  the  whole  or  some  part  of 
them  is  stricken  out  on  motion,  the  party  filing  such  pleading 
must  pay  treble  costs,  and  no  further  petition,  answer  or  reply 
can  be  filed,  but  judgment  shall  be  rendered.4  This  section 
authorizes  only  a  judgment  for  treble  costs,  and  not  one  on  the 
merits.*  And  the  fact  that  such  judgment  has  been  entered 
against  the  plaintiff  will  not  bar  a  subsequent  action  by  him  on 
a  sufficient  petition.6  It  is  the  duty  of  the  court  to  render  a  judg- 
ment as  provided  in  this  section,  regardless  of  the  fact  whether 
plaintiff  desires  to  plead  further  or  not.7  The  above  cited  sec- 
tion applies  to  a  proceeding  to  contest  a  will.8 

§  84P>.  Effect  of  overruling  demurrer, —  If  a  demurrer  to  a 
special  plea  filed  to  a  bill  in  equity  is  overruled,  such  plea  being 
a  complete  and  full  defense  to  the  suit,  and  plaintiff  elects  to 
stand  on  his  demurrer,  the  court  properly  dismisses  the  bill.9  If 
the  demurrer  to  the  petition  is  overruled  and  defendant  declines 
to  plead  further,  all  the  material  allegations  of  the  petition  stand 
confessed.  If  in  such  case  the  damages  are  unliquidated,  a  writ 
of  inquiry  of  damages  must  be  executed,  and  the  damages  shown 
by  proof.  But  if  the  amount  is  fixed  by  any  statutory  provis- 
ion, the  court  may  immediately  render  judgment  in  favor  of  the 
plaintiff.10 

1  State  to  use  v.  Finn,  19  App.  560.  6  Bennett  v.  Southern  Bank,  61  App. 
See  §  804,  ante;  §  847,  post.  297. 

2  Powell  v.  Palmer,  45  App.  236.  7  Lasar  v.  Baldridge,  32  App.  362. 
a  Norton  v.  St.  Louis,  97  Mo.  537.               8  Gordon  v.  Burris,  125  Mo.  39. 

*  Rev.  Stat  1899,  sec.  623.  »  Henley  v.  Henley,  93  Mo.  95. 

5  Gordon  v.  Burris,  125  Mo.  39.  w  Scott  v.  Mo.  Pac.  R,  Co.,  38  App.  523. 


§  847.]  THE   DEMURRER.  433 

§  847.  Effect  ot  answering  over, —  "Where,  after  his  demurrer 
to  the  petition  has  been  overruled,  the  defendant  answers  over, 
he  waives  all  objections  to  the  petition  except  that  it  fails  to  state 
a  cause  of  action,  and  that  it  shows  a  want  of  jurisdiction  of  the 
court  over  the  subject-matter.1  Therefore  a  demurrer  on  the 
ground  that  an  unnecessary  party  has  been  joined  as  plaintiff 
is  waived  by  an  answer.2  An  objection  to  the  petition  that  the 
suit  was  brought  directly  in  the  name  of  a  person  as  plaintiff,  in- 
stead of  being  brought  in  the  name  of  the  city  of  St.  Louis  to  the 
use  of  such  person,  is  also  waived  by  answering  the  petition,  not- 
withstanding that  a  demurrer  to  the  petition  on  that  ground  had 
been  previously  filed  and  overruled ;  a  party  can  only  preserve 
such  objection  by  standing  on  his  demurrer.3 

dickering  v.  Miss.  VaL  Tel.  Co.,  47  over  after  a  motion  has  been  overruled 

Mo.  457 ;  West  v.  McMullen,  112  Mo.  405 ;  is  considered  in  chapter  XXXVL    (See 

Board  of  Education  v.  Hackmann,  48  §  868  et  seq.) 

Mo.  243;  Jefferson  City  Sav.  Inst.  v.  2Holliday  v.  Jackson,  21  App.  660. 

Morrison,  48  Mo.  273;  Heman  v.  Glann,  3Haughey  Livery  Co.  v.  Joyce,  41 

129  Mo.  325;  Miller  v.  Harper,  63  App.  App.  564.    To  same  effect,  Galbreath 

293;  Wilson  v.  St  Louis  &  S.  F.  R.  Co.,  v.  Newton,  45  App.  312. 
67  App.  44a    The  effect  of  pleading 
Ma  Code  Pl.—  28 


CHAPTER  XXXIII. 
MOTION  TO  MAKE  DEFINITE  AND  CERTAIN. 


§  848.  The  statutory  provisions. 

849.  When  the  motion  is  proper. 

850.  Same  —  Insufficient  allegation 

of  damages. 


§  851.  When  the  motion  is  unneces- 
sary. 

852.  What  the  motion  must  show. 

853.  Illustrations  of  the  above  rules. 


§  848.  The  statutory  provisions. —  When  the  allegations  or 
denials  of  a  pleading  are  so  indefinite  or  uncertain  that  the  pre- 
cise nature  of  the  charge  or  denial  is  not  apparent,  and  when  a 
pleading  fails  in  any  other  respect  to  conform  to  the  require- 
ments of  the  law,  the  court  may  require  such  pleading  to  be  so 
amended  as  to  be  made  definite  and  certain,  and  to  otherwise 
conform  to  the  law.1  It  has  been  doubted  whether  the  court 
may  upon  its  own  motion  make  such  an  order;  and  the  supreme 
court  has  said  that  it  would  seem  to  be  implied  by  the  language 
of  the  statute  that  it  must  be  done  on  motion  of  the  adverse 
party.2  But  this  doubt  no  longer  exists,  for  the  court  in  banc 
says  in  Leete  v.  State  Bank: 3  "  It  was  the  duty  of  plaintiff,  in  order 
to  have  apprised  the  defendant  bank  of  the  nature  of  her  cause 
of  action,  and  her  duty  to  the  court,  to  have  stated  these  dates, 
and  the  duty  of  the  lower  court  under  section  2057 4  to  have  re- 
quired that  these  uncertain  allegations  of  the  petition  in  this 
regard  be  made  definite  and  certain.  And  though  the  defend- 
ant bank  might  have  filed  a  motion  for  the  purpose  mentioned, 
yet  it  was  not  bound  to  do  so,  since  it  was  the  primary  duty  of 
plaintiff  to  make  a  clear  and  unequivocal  statement  of  her  allega- 
tions, and  this  onus  she  could  not  cast  on  her  adversary  by  fail- 
ing in  her  duty  in  this  regard."  '■ 


s 


1  Rev.  Stat.  1899,  sec.  612;  Atteberry  4  Now  sec.  612. 

v.   Powell,   29  Mo.  429;    Cockerill  v.  5  141  Mo.,  p.  581.    The  court  in  that 

Stafford,  102  Mo.  57;  Smith  v.  Chicago  case  also  cites  sec.  676  (Rev.  Stat  1899). 

&  Alton  R.  Co.,  119  Mo.  246.    That  mo-  That  section  provides  that  pleadings 

tion  must  be  tiled   before  trial,  see  shall  be  so  construed  as  to  discourage 

§  789,  ante.  negligence    and    deceit,  to   prevent 

2  State  ex  rel.  v.  Oddle,  42  Mo.  210.  delay  and  to  secure  parties  from  being 
3 141  Mo.  574.  misled.    See  also  §  851,  post. 


§§  819-851.]       MOTION    TO   MAKE    DEFINITE   AND    CERTAIN.  435 

§  849.  When  the  motion  is  proper. —  Indefiniteness  and  un- 
certainty in  a  petition  are  properly  reached  by  motion,  and  not 
by  demurrer.1  Such  a  motion  is  proper  where  the  petition  fails 
to  set  forth  a  particular  statement  of  the  items  of  an  account,  as 
required  by  section  630.2  But  if  the  pleading  does  not  comply 
with  the  statutory  requirement  that  the  items  of  the  account 
sued  on  shall  be  set  forth  in  the  pleading  or  attached  to  it,  the 
adverse  party  has  his  choice,  either  to  move  to  have  the  pleading 
made  more  definite,  or  to  object  to  the  introduction  of  any  evi- 
dence in  support  of  the  account.3  And  if  such  objection  is  made, 
it  is  error  to  admit  any  evidence  in  support  of  the  account.4  If 
the  statute  is  substantially  complied  with,  any  mere  lack  of  par- 
ticularity in  the  items  will  be  cured  unless  the  adversary  fails  to 
move  that  the  account  be  made  more  definite  and  certain.5  An 
answer  or  reply  which  contains  a  denial  of  each  and  every  alle- 
gation contained  in  the  petition  "  except  as  hereinafter  admitted  " 
is  defective,  and  a  motion  will  lie  to  make  it  more  definite  and 
certain.6  But  if  advantage  of  the  defect  is  not  taken  by  such 
motion,  it  cannot  be  raised  at  the  trial.7 

§850.  Same  —  Insufficient  allegation  of  damages. —  Where 
the  defendant  claims  that  the  allegations  of  special  damages  in 
the  petition  are  not  sufficiently  explicit  to  advise  him  of  the  ele- 
ments of  damage,  his  course  is  to  move  to  have  the  petition  made 
more  definite  and  certain.8  If  the  petition  is  defective  by  reason 
of  containing1  allegations  of  damage  to  several  head  of  cattle  sus- 
tained  at  different  dates,  the  defect  cannot  be  reached  by  a  mo- 
tion to  make  definite  and  certain,  but  the  defendant  must  make 
his  motion  to  require  the  plaintiff  to  elect.9 

§  851.  When  the  motion  is  unnecessary. —  If  the  answer  is 
so  indefinite  that  it  is  difficult  to  determine  what  is  admitted 
and  what  denied,  the  court  will  construe  it  most  strongly  against 
the  defendant,  and  plaintiff  is  not  bound  to  file  a  motion  that  it 
be  made  more  definite  and  certain.10 

>  McAdam  v.  Scudder,  127  Mo.  345.  v.  Phoenix  Ins.  Co.,  28  App.  7;  Walker 

2  Rev.  Stat.  1899;  Baker  v.  Raley,  18  v.  Phoenix  Ins.  Co.,  62  App.  209. 
App.  563.  7  Collins  v.  Trotter,  81  Mo.  275. 

3  Dawson  v.  Quillen,  61  App.  672.  8  State  to  use  v.  McHale,  16  App.  478. 
That  the  objection  may  also  be  raised  9Dooley  v.Mo.Pac.R.Co.,36  App.  381. 
by  demurrer,  see  §  826,  ante.  10  Snyder  v.  Free,  114  Mo.  360.    See 

4  Labadie  v.  Maguire,  6  App.  573.  also  §  848,  ante.  The  court  apparently 
See  also  §  853,  n.  4,  p.  436.  considers  this  case  and  the  one  cited 

6  Meyer  v.  Chambers,  68  Mo.  626.  in  §  848  exceptions  to  the  rule  as  to 

6  Long  v.  Long,  79  Mo.  644;  Bradley    waiver  announced  in  chapter  XXXVI. 


43(>  MOTION    TO   MAKE   DEFINITE   AND   CERTAIN.       [§§  852,  853. 

|  852,  What  the  motion  must  show. —  A  motion  to  make  a 
pleading  more  definite  and  certain,  or  to  require  it  in  any  other 
particular  to  conform  to  the  requirements  of  the  law,  must  with 
reasonable  certainty  set  forth  the  particulars  in  which  the  plead- 
ing is  uncertain  or  otherwise  defective.1 

§  853.  Illustrations  of  the  above  rules. —  AVhere  the  action 
was  for  injuries  resulting  from  a  defective  sidewalk  on  a  public 
street,  and  the  petition  described  the  injury  as  having  taken  place 
on  the  south  side  of  one  street  and  between  two  other  streets,  if 
this  description  of  the  place  of  the  injuries  was  deemed  by  de- 
fendant inadequate,  it  should  have  filed  its  motion  to  make  the 
description  more  definite.2  An  action  was  brought  against  a  rail- 
road company  for  obstructing  a  road  by  the  construction  of  its 
road-bed,  and  defendant  contended  that  the  petition  was  defect- 
ive because  it  failed  to  show  whether  the  road  alleged  to  have 
been  obstructed  was  a  public  or  a  private  one.  It  was  held  that 
defendant  could  not  avail  itself  of  the  defect  by  objecting  to  the 
admission  of  any  testimony,  but  should  have  moved  to  make  the 
petition  more  definite  and  certain.3  In  an  action  to  recover  the 
balance  of  an  account,  there  was  an  allegation  in  the  petition  that 
an  itemized  statement  of  the  account  was  attached  thereto,  while 
in  fact  no  such  statement  was  attached;  it  was  held  that  the  court 
below  erroneously  overruled  a  motion  of  defendant  to  have  the 
petition  and  account  made  more  definite.4  So,  too,  in  an  action 
against  the  estate  of  a  decedent  in  course  of  administration,  where 
the  petition  set  up  a  claim  in  gross  for  sundry  services  rendered 
at  divers  times  during  a  period  of  twenty  years  in  the  life-time 
of  the  deceased,  without  specifying  the  items  upon  which  the  re- 
covery was  sought  or  their  respective  values,  it  was  held  that  the 
court  might,  on  motion  of  the  executor,  require  the  petition  to  be 
made  more  definite  and  certain  in  these  respects,  and,  if  plaintiff 
failed  to  comply  with  the  order,  the  court  might  dismiss  the  case.5 
Where  an  action  was  brought  against  a  railroad  company  to  re- 
cover a  rebate,  which  plaintiff  alleged  the  company  had  agreed 
to  allow  him  on  freight  shipped  by  him,  it  is  not  error  to  deny 
defendant's  motion  that  the  petition  be  made  more  definite  and 
certain  by  stating  where  and  by  what  officers  the  alleged  contract 
was  made,  and  whether  it  was  oral  or  in  writing;  nor  did  the 

1  O'Connor  v.  Koch,  56  Mo.  253.  4  Chillicothe  Savings  Ass'n  v.  Morris, 

2  Allen  v.  Springfield,  61  App.  270.  52  App.  612.     See  also  §  849,  ante. 

3  Autenrieth  v.  St.  Louis  &  S.  F.  R.        6  McAdam  v.  Scudder,  127  Mo.  345. 
Co.,  36  App.  254. 


§  853.]  MOTION   TO   MAKE   DEFINITE   AND   CERTAIN.  437 

court  err  in  overruling  defendant's  motion  to  require  the  con- 
tract, if  in  writing,  to  be  filed  in  court  for  the  defendant's  inspec- 
tion, it  appearing  that  the  contract  was  not  in  writing,  and  the 
terms  of  the  contract  being  fully  set  out  in  the  petition.1  Where 
in  a  proceeding  for  partition  the  allegations  of  the  petition  were 
substantially  that  the  annual  rents  and  profits  of  the  premises 
were  $1,000,  and  that  the  co-tenant  was  in  the  exclusive  recep- 
tion of  such  rents  and  profits  and  refused  plaintiff  any  part 
thereof,  the  petition  is  not  so  definite  and  certain  as  it  might  be 
that  defendant  had  excluded  plaintiff  from  the  joint  occupancy 
of  the  land,  and  a  motion  to  make  it  more  definite  and  certain 
in  that  respect  would  lie.2 

1  Christie  v.  Mo.  Pac.  R.  Co.,  94  Mo.        In  chapter  XXXI  the  question  of  the 
453.  time  when  the  motion  in  question 

2  Holloway  v.  Holloway,  97  Mo.  628.    must  be  filed  is  considered. 


CHAPTER  XXXIV. 


MOTION  TO  STRIKE  OUT. 


§857 


Motion  must  be  in  writing  and 
specific. 

858.  Time  for  filing  motion.  { 

859.  Disposition  of  the  motion. 


§  854  The  rule. 

855.  What  defects  are  reached  by- 

motion. 

856.  Motion    admits    facts    well 

pleaded. 

§  854.  The  rule. —  If  irrelevant  or  redundant  matter  is  in- 
serted in  a  pleading,  it  may  be  stricken  out  on  motion  of  the 
adverse  party.1  Matter  in  the  answer  which  is  not  responsive 
to  the  petition  will  be  stricken  out  on  motion.2  So  will  such  parts 
of  an  answer  as  present  no  defense.3  If  the  answer  neither  ad- 
mits nor  denies  the  making  of  the  contract  set  up  in  the  petition, 
it  is  evasive  and  may  be  stricken  out.4  If  the  reply  contains  re- 
dundant, impertinent  or  irrelevant  matter,  and  yet  is  not  obnox- 
ious to  a  demurrer,  such  matter  may  be  stricken  out  on  motion.* 
The  objection  that  the  reply  is  a  departure  from  the  petition  can- 
not be  raised  by  a  motion  to  strike  out  the  reply  for  the  reason 
that  it  contains  new  matter  inconsistent  with  the  allegations  of 
the  petition,  provided  there  is  any  averment  or  statement  in  the 
reply  which  puts  in  issue  any  of  the  new  matter  of  the  answer, 
and  the  motion  attacks  the  reply  as  a  whole.6 

§  855.  What  defects  are  reached  by  motion.— It  seems  that 
an  improper  joinder  of  causes  of  action  in  the  same  count  must 
be  reached  by  a  motion  to  strike  out,  and  not  by  a  demurrer.7 
An  objection  for  improperly  blending  statements  which  tend  to 
constitute  a  defense  on  the  merits  and  those  relating  to  a  counter- 
claim may  be  raised  by  a  motion  to  strike  out.8  The  defect  of 
duplicity  in  a  petition  must  be  reached  by  a  motion  to  strike 
out ;  even  at  common  law  it  could  not  be  reached  by  a  motion 
in  arrest,  if  no  special  demurrer  had  been  filed.9 


i  Rev.  Stat  1899,  sec.  612. 

2  Singleton  v.  Pacific  Railroad,  41 
Mo.  465. 

3  Phillips  v.  Evans,  38  Ma  305;  Hous- 
ton v.  Lane,  39  Mo.  495. 

*  Miller  v.  Chicago  &  Alton  R.  Co., 
62  App.  252. 


5  Kinney  v.  Miller,  25  Mo.  576. 
ephilibert  Mfg.  Co.  v.  Dawson,  77 
App.  122. 

7  Farmers'  Bank  v.  Bayliss,  41  Mo. 
274     Consult  also  ch.  XXXIL 

8  Kinney  v.  Miller,  25  Mo.  576. 

9  St.  Louis  v.  Weitzel,  130  Mo.  600. 


§§  856-859.]  motion  to  strike  out.  439 

§  856.  Motion  admits  facts  well  pleaded. —  A  motion  to  strike 
out,  like  a  demurrer,  confesses  the  facts  pleaded  in  that  part  of 
the  pleading  at  which  the  motion  is  aimed.1  The  same  is  true 
of  a  motion  to  dismiss.2 

§  857.  Motion  must  be  in  writing  and  specific. —  Under  sec- 
tion 640,3  all  motions  must  be  accompanied  by  a  written  specifi- 
cation of  the  reasons  upon  which  they  are  founded,  and  no  reason 
which  is  not  so  specified  can  be  urged  in  support  of  the  motion.4 
If  the  motion  is  to  strike  out  certain  parts  of  a  pleading,  it  should 
contain  the  parts  sought  to  be  stricken  out,  or  those  parts  should 
be  so  designated  that  they  can  be  readily  ascertained.5  The  part 
to  be  stricken  out  must  be  set  out  in  full;  it  is  not  sufficient  to 
designate  it  by  reference  to  the  page  and  the  line  of  the  page.6 
If  such  course  is  taken,  the  appellate  court  will  not  review  the 
action  of  the  lower  court  upon  the  motion.7 

§  858.  Time  for  filing  motion. —  A  motion  to  strike  out  part 
of  a  petition  must  be  presented  before  the  answer  is  filed ;  it  cer- 
tainly comes  too  late  if  it  is  not  filed  until  the  case  is  called  for 
trial.8 

§  859.  Disposition  of  the  motion. —  If,  after  a  motion  is  made 
to  strike  out  the  answer,  defendant  does  not  appear  on  the  call- 
ing of  the  case,  and  judgment  is  thereupon  given  for  the  plaint- 
iff without  a  formal  disposition  of  the  motion,  defendant  cannot 
complain.9  A  motion  to  strike  out  a  pleading  as  a  whole  must, 
like  a  general  demurrer,  be  overruled  if  any  part  of  the  pleading 
attacked  is  sufficient.10  And  as  a  motion  to  strike  out  a  reply  as  a 
whole,  and  not  some  specific  part  of  it,  must  be  governed  by  the 
rules  applicable  to  general  demurrers,  if  there  is  in  such  case 
any  averment  or  statement  in  the  reply  which  puts  in  issue  any 
of  the  new  matter  set  forth  in  the  answer,  the  motion  should  be 
overruled.11  Thus  where,  in  an  action  against  a  carrier  for  fail- 
ure to  deliver  the  goods,  there  was  an  averment  in  the  answer 

i  Wonderly    v.   Lafayette    County,  7  Robinson  v.  Rice,  20  Mo.  229. 

150  Mo.  635.  8  Sheehan  &  Loler  Trans.  Co.  v.  Sims, 

2  Butler  v.  Lawson,  72  Mo.  227.  62  App.  224. 

8  Rev.  Stat.  1899.  In  chapter  XXXI  the  question  of  the 

4  State  ex  reL  v.  Oddle,  42  Mo.  210;  time  when  a  motion  must  be  filed  is 

Paddock  v.  Somes,  102  Mo.  226.  further  considered. 

sPearce  v.   Mclntyre,  29  Mo.   423;  9  Webb  v.  Stevens,  14  Mo.  480. 

Jackson  v.  Bowles,  67  Mo.  609;  State  10Herf  Chemical  Co.  v.  Lackawanna 

ex  rel.  v.  Fleming,  147  Mo.  1;  Ander-  Line,  78  App.  305. 

son  v.  Stapel,  80  App.  115.  "  Philibert  Mfg.  Co.  v.  Dawson,  77 

6  Patterson  v.  Hollister,  32  Mo.  478.  App.  122. 


440  MOTION    TO   STKIKE   OUT.  [§  859. 

that  the  goods  arrived  on  time,  and  the  reply  took  issue  on  that 
averment,  the  motion  to  strike  out  the  reply  was  properly  over- 
ruled, whatever  might  have  been  its  other  defects.  Where  the 
action  is  one  at  law,  and  the  motion  is  directed  at  certain  parts 
of  the  answer,  if  the  parts  thus  attacked  constitute  no  defense  to 
the  action  at  law,  and  do  not  standing  alone  constitute  an  equi- 
table defense,  yet  if  they  state  a  fact  which  it  is  proper  for  the 
court  to  consider  with  other  circumstances  in  determining  whether 
or  not  the  relief  asked  by  plaintiff  should  be  granted,  the  mo- 
tion is  properly  overruled.1  If  the  action  of  the  court  in  strik- 
ing out  the  answer  is  erroneous,  and  defendant  intends  to  avail 
himself  of  the  error,  he  must  let  judgment  go  and  stand  upon 
his  exceptions  to  the  court's  action.2 

1  Ridgeway  v.  Herbert,  150  Mo.  606.    has  been  overruled  is  considered  in 

2  Fuggle  v.  Hobbs,  42  Mo.  537.    The    chapter  XXXI.    See  §  806. 
effect  of  pleading  over  after  a  motion 


CHAPTER  XXXY. 


MOTION  TO  ELECT. 


§  860.  Causes    of  action    improperly- 
united.     • 
86  i.   Inconsistent  counts. 


862.  One  cause  of  action  stated  in 

several  counts. 

863.  Electing  between  defenses. 
864  Illustrations  of  the  rule. 


§  860.  Causes  of  action  improperly  united.— Where  several 
causes  of  action  are  improperly  united  in  one  count,  a  motion  to 
require  the  plaintiff  to  elect  between  the  causes  of  action  is  the 
proper  remedy.1  Unless  defendant  makes  such  motion  he  will 
be  deemed  to  have  waived  the  objection.2 

§861.  Inconsistent  counts. —  Where  several  counts  in  the 
same  petition  are  inconsistent,  so  that  the  proof  of  one  neces- 
sarily disproves  the  other,  the  court  should,  if  requested  by  the 
defendant  to  do  so,  and  may  of  its  own  motion,  compel  the 
plaintiff  at  any  time  to  elect  on  which  one  of  the  inconsistent 
counts  he  will  proceed  to  trial.  If,  on  the  other  hand,  there  is 
no  necessary  inconsistency  between  the  counts,  but  they  are  for 
the  same  cause  of  action,  so  that  only  one  recovery  can  be  had, 
it  would  seem  to  be  the  better  practice  that  the  court  should,  if 
requested  so  to  do,  and  may  of  its  own  motion,  upon  the  close  of 
plaintiff's  evidence,  compel  him  to  elect  on  which  of  the  several 
counts  he  will  take  the  verdict  of  the  jury,  as  this  practice  alone 
will  enable  appellate  courts  to  review  intelligently  the  rulings 
of  the  trial  courts  upon  the  evidence  and  instructions.3  But 
plaintiff  will  not  be  compelled  to  elect  in  such  case  unless  there 
is  so  clear  an  inconsistency  between  the  different  causes  of  action 
that  the  proof  of  one  necessarily  disproves  the  other.4 

§862.  One  cause  of  action  stated  in  several  counts.— The 
trial  court  should  not  require  the  plaintiff  to  elect  where  all  the 

iMooney   v.   Kennett,  19  Mo.   551;  App.  491;  Kansas  City  T.  &  G.  Co.  v. 

Dougherty  v.  Wabash,  St.  L.  &  Pac.  Neiswanger,  50  App.   389;  Harris  v. 

R  Co.,  19  App.  419;  Kern  v.  Pfaff,  44  Wabash  R.  Co.,  51  App.  125. 

App.  29;  Childs  v.  Kansas  City,  St.  J.  3  Roberts  v.  Quincy,  O.  &  K.  C.  R. 

&  C.  B.  R.  Co.,  117  Mo.  414.  Co.,  43  App.  287,  289. 

2Fadley  v.  Smith,  23  App.  87;  Wal-  4Seiter  v.  Bischoff,  63  App.  157. 
lace  v.  Kansas  City  &  S.  R.  Co.,  47 


442  MOTION   TO    ELECT.  [§§  803,  804. 

matters  alleged,  though  stated  separately,  constitute  together 
but  one  cause  of  action.1  And  if  one  and  the  same  cause  of  ac- 
tion is  stated  in  different  counts,  while  the  court  may  strike  out 
either  one  of  them,  its  refusal  to  compel  plaintiff  to  elect  on 
which  count  he  will  go  to  trial  is  not  reversible  error.2  If  the 
different  wrongs  complained  of  in  the  different  counts  of  the  pe- 
tition constitute  a  continuous  and  permanent  injury  resulting 
from  the  same  act  done  by  the  defendant,  a  motion  to  require 
the  plaintiff  to  elect  is  properly  overruled.3  The  objection  that 
a  petition  which  constitutes  but  a  single  cause  of  action  contains 
superfluous  and  redundant  matter  which  might  be  stricken  out 
furnishes  no  ground  for  sustaining  a  motion  to  elect.4 

§  863.  Electing  between  defenses. —  If  the  defenses  set  up  in 
the  answer  are  inconsistent,  defendant  may  be  compelled,  before 
entering  upon  his  proof,  to  elect  between  them.5  But  this  rule 
applies  only  to  cases  where  if  one  defense  be  true  the  other  must 
necessarily  be  false;  for  the  defendant  cannot  be  compelled  to 
elect  between  two  defenses,  both  of  which  may  be  true  in  fact.6 

§864.  Illustrations  of  the  rules.— The  following  cases  fur- 
nish illustrations  of  circumstances  under  which  a  plaintiff  will 
or  will  not  be  compelled  to  elect  as  between  different  counts  or 
causes  of  action :  If  the  first  count  declares  upon  a  contract,  and 
the  second  count  among  other  items  for  money  laid  out  and  ex- 
pended by  plaintiff  at  defendant's  request,  plaintiff  will  not  be 
required  to  elect.7  If  the  petition  is  defective  because  it  contains 
allegations  of  damages  to  several  head  of  cattle  sustained  at  dif- 
ferent dates,  plaintiff  will  be  required  to  elect.8  But  where 
plaintiff  seeks  to  recover  for  a  continuous  injury  by  animals  tres- 
passing on  his  growing  crop,  in  consequence  of  a  continuing  fail- 
ure on  defendant's  part  to  perform  its  duty,  he  will  not  be 
required  to  elect.9  Plaintiff  sued  upon  a  written  promise  to  pay 
a  draft,  and  the  petition  was  in  two  counts.     In  the  first  the 

1  McNees  v.  Mo.  Pac.  R  Co.,  22  App.  As  to  the  time  when  the  motion  to 
224.  elect  must  be  made,  consult  chapter 

2  Freet  v.  Kansas  City,  St.  J.  &  C.  B.    XXXI.    (See  §§  789,  797.) 

R  Co.,  63  App.  548.  7  Crescent  Mfg.  Co.  v.  Nelson  Mfg. 

3  Autenrieth  v.  St.  Louis  &  S.  F.  R.     Co.,  100  Mo.  325. 

Co.,  36  App.  254.  8  Dooley  v.  Mo.  Pac.  R  Co.,  36  App. 

4  Griffith  v.  Mo.  Pac.  R.  Co.,  98  Mo.    381. 

16a  9  Ray  v.  St.  Louis,  L  M  &  S.  R  Co., 

5  Fugate  v.  Pierce,  49  Mo.  441.  25  App.  104.    See  also  Autenrieth  v. 
SKeane  v.  Kyne,  2  App.  317;  Lee  v.    Railroad,  36  App.  254. 

Dodd,  20  App.  271. 


§  864.]  MOTION   TO   ELECT.  443 

writing  was  declared  on  as  an  acceptance  of  the  draft,  and  in 
the  second  plaintiff  sued  for  a  breach  of  the  promise  to  accept.  It 
was  held  that  plaintiff  could  not  be  compelled  to  elect.1  In  an 
action  to  recover  for  personal  injuries,  the  petition  alleged  that 
the  accident  was  due  to  the  defective  condition  of  an  elevator, 
knowledge  of  which  was  chargeable  to  the  defendant,  and  also 
set  up  the  violation  of  a  city  ordinance  relating  to  inspection  as 
a  cause  of  the  injury.  It  was  held  that  the  petition  did  not  state 
two  causes  of  action,  so  as  to  put  plaintiff  to  an  election.2  In  an 
action  for  the  death  of  plaintiff's  husband  from  injuries  received 
while  employed  in  defendant's  mine,  the  petition  contained  two 
counts,  the  first  under  section  8S22,3  requiring  the  owner  to  keep 
timber  for  props,  and  the  second,  an  attempt  to  unite  this  pro- 
vision with  the  general  damage  act.  The  court  properly  over- 
ruled a  motion  to  compel  plaintiff  to  elect.4  In  an  action  against 
a  sheriff,  the  petition  charged  him  in  a  single  count  with  failure 
to  levy  upon  goods  and  lands  of  the  execution  debtor,  and  with 
failure  to  make  return  of  the  execution  at  the  proper  term,  and 
there  was  but  one  prayer  for  damages  predicated  upon  both 
causes  of  action.  It  was  held  that  the  plaintiff  might  be  com- 
pelled to  elect.5  If,  in  an  action  on  a  breach  of  contract  be- 
tween employer  and  employee,  plaintiff  counts  on  both  the  theory 
of  a  breach  of  the  contract  of  hiring  and  also  on  a  quantum 
meruit,  plaintiff  may  be  compelled  to  elect.6 

i  Brinkman  v.  Hunter,  73  Mo.  172.  6  Stevenson  v.  Judy,  49  Mo.  227. 

2  O'Neil  v.  Young,  58  App.  628.  6  Ehrlich  v.  Mtna,  Life  Ins.  Co.,  88 

3  Rev.  Stat.  1899.  Mo.  249. 
4Boemer  v.   Central  Lead  Co.,  69 

App.  60L 


CHAPTER  XXXVI. 


HOW  DEFECTS  IN  PLEADING  MAY  BE  WAIVED. 


§  865.  General  principles. 

866.  By  failing  to  raise  objection  at 

the  proper  time. 

867.  Same  —  Illustrative  cases. 

868.  By  pleading  to  the  merits. 

869.  Same  —  Defect  of  parties. 

870.  Same  —  In  case  of  partners. 


§  871.  Same  —  Improper  mingling  of 
causes  of  action. 

872.  Waiver  by  pleading  to  amended 

pleading. 

873.  By  going  to  trial. 

875.  The  rule  applies  to  answers. 

876.  Objections  not  made  in  trial 

court. 


§  865.  General  principles. —  Objections  which  cannot  be  prop- 
erly made  either  by  demurrer  or  answer  must  be  made  by  a  mo- 
tion of  some  kind,  either  a  motion  to  strike  out  or  a  motion  to 
make  more  definite  and  certain,  according  to  the  circumstances 
of  the  case.  All  defects  of  this  character  are  waived  unless  taken 
by  a  motion  of  one  kind  or  the  other.1  But  where  a  plaintiff,  a 
married  woman,  bases  her  suit  on  the  fact  that  the  property  sued 
for  was  purchased  with  her  separate  property,  which  was  be- 
queathed to  her  in  her  own  right,  but  fails  to  definitely  allege  the 
date  of  her  marriage  and  that  of  the  death  of  the  testator  under 
whom  she  claims,  so  that  the  court  may  see  under  what  statute 
her  right  was  acquired,  it  is  the  duty  of  the  trial  court  to  require 
her  to  so  amend  her  petition  as  to  make  it  definite  in  these  partic- 
ulars; and  the  objection  is  not  waived  because  defendant  fails 
to  file  a  motion  requiring  her  to  amend  her  petition  in  this  re- 
spect.2 

§  866.  By  failing  to  raise  objection  at  the  proper  time. — 
Defects  which  do  not  go  to  the  very  essence  of  the  proceeding, 
which  affect  only  form  or  the  method  of  stating  the  facts,  will  be 
waived  unless  advantage  is  taken  of  the  defects  at  the  proper 
time.  But  if  the  petition  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  this  is  such  a  defect  as  is  never  waived. 
It  may  be  raised  at  any  time  so  long  as  the  cause  is  pending  and 

!Sims  v.  Field,  24  App.  557;  Burke    Haynes  v.  Trenton,  123  Mo.  326;  Wal- 
Mfg.  Co.  v.  Steamboat  Saltzman,  42    ters  v.  Hamilton,  75  App.  237. 
App.  85;  Harford  v.  Boyes,56App.  139;        2Leete  v.  State  Bank,  141  Mo.  574. 

See  also  §  851,  ante. 


§§  8G7,  868.]  DEFECTS   IN   PLEADING    WAIVED.  445 

undetermined.  It  may  be  raised  either  in  the  court  of  first  in- 
stance or  in  that  of  last  resort;  and  it  may  be  raised  by  either 
court  of  its  own  motion.1  If  the  allegations  of  a  pleading  are 
uncertain  or  vague,  but  the  adverse  party  does  not  seasonably 
move  by  some  proper  motion  for  their  correction,  he  cannot  at 
the  trial  raise  the  objection  by  asking  that  all  evidence  in  sup- 
port of  the  pleading  be  excluded.2 

§  867.  Same  — Illustrative  cases.— In  an  action  on  a  quan- 
tum meruit  the.  petition  alleged  that  a  correct  statement  of  the 
labor  and  material  sued  for  was  annexed.  In  the  statement 
there  was  an  item  "  of  work  last  fall,"  and  defendant  objected 
to  any  evidence  as  to  this  item.  But  it  was  held  that  the  ob- 
jection came  too  late,  defendant  having  failed  to  file  his  motion 
to  make  the  petition  more  definite.3  Where  a  defendant  is  not 
a  necessary  party  to  a  suit,  but  fails  to  take  advantage  of  this  de- 
fect by  demurrer,  or,  if  necessary,  by  answer,  and  goes  to  trial  on 
the  petition,  he  waives  the  defect,  and  cannot  at  the  trial  ask  to 
have  his  name  stricken  out.4  If  all  of  several  tenants  in  common 
do  not  join  in  an  action  of  trespass  on  the  property,  defendant 
must  take  advantage  of  that  fact  before  going  to  trial.5  Where 
different  causes  of  action  are  blended  in  the  same  count,  and  de- 
fendant fails  to  demur,  he  waives  the  joinder,  provided  the  error 
appears  on  the  face  of  the  petition;  if  it  does  not,  and  he  fails 
to  take  advantage  of  the  defect  by  his  answer,  it  will  be  waived.6 
If  it  is  claimed  that  in  a  petition  in  replevin  the  description  of 
the  property  is  insufficient  or  uncertain,  an  objection  on  this 
ground  must  be  made  by  the  defendant  at  the  first  available  op- 
portunity. If  he  omits  to  do  so,  pleads  to  the  merits  and  goes 
to  trial,  he  cannot  afterwards  make  the  objection.7 

§  808.  By  pleading  to  the  merits.— Where  defendant  pleads 
to  the  merits,  he  waives  objection  to  all  merely  formal  defects, 
and  will  not  be  heard  at  the  trial  or  on  appeal  to  object  that  the 
petition  does  not  properly  state  a  cause  of  action  unless  it  ap- 

i  McPeak  v.  Mo.  Pac.  R.  Co.,  128  Mo.  i  Soeding  v.  Bartlett,  35  Mo.  90. 

617.    So,  too,  the  objection  that  the  8  Thompson  v.  Chicago,  R  L  &  Pac. 

court  has  not  jurisdiction  over  the  R  Co.,  80  Mo.  521. 

subject-matter  is  never  waived.     Rev.  6  Sinclair  v.  Mo.,  K.  &  T.  R  Co.,  70 

Stat.  1899,  sec.  602.    See  §  868,  post.  App.  588. 

2  Coombs  Com.  Co.  v.  Block,  130  Mo.  7  Crum  v.  Elliston,  33  App.  591. 
668.  This  subject  is  further  considered  That  objection  as  to  the  adding  of 
in  §  876,  post.  a  party  may  be  waived,  see  §  872,  n.  8, 

3  Kansas  City  Tile  &  Gravel  Co.  v.  p.  448. 
Neiswanger,  50  App.  389. 


446  DEFECTS   IN   TLEADING    WAIVED.  [§  8G9. 

pears  that  there  is  an  entire  failure  to  state  a  cause  of  action.1 
Because  by  pleading  to  the  merits  defendant  waives  all  objec- 
tions to  the  petition,  except  that  it  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action,  and  that  the  court  has  no  juris- 
diction over  the  subject-matter  of  the  action.2  Inherent  want  of 
jurisdiction  cannot  be  waived,  although,  it  may  be  added,  objec- 
tion to  the  vendee  may  be.3  If  a  matter  material  to  plaintiff's  cause 
of  action  is  not  expressly  averred  in  the  petition,  but  is  neces- 
sarily implied  from  what  is  expressly  averred,  so  that  the  defect 
is  cured  by  verdict,  defendant  must  make  his  objection  by  de- 
murrer or  motion  to  strike  out;  a  plea  to  the  merits  waives  such 
an  objection.4  A  general  charge  of  negligence  is  sufficient  after 
answer.5  An  objection  that  the  instrument  sued  on  was  not  filed 
with  the  petition  is  waived  b}*-  pleading  to  the  merits.6  So,  too, 
is  the  objection  that  defendant  failed  to  serve  plaintiff  with  a 
copy  of  a  pleading  where  he  is  required  to  do  so  by  the  statute.7 
§  869.  Same  —  Defect  of  parties.—  Where  a  defect  of  parties 
is  apparent  on  the  face  of  the  petition,  the  objection  must  be  made 
by  demurrer  or  it  will  be  waived.8  And  the  same  rule  applies  to 
the  objection  that  the  petition  is  defective  by  reason  of  a  non- 
joinder of  parties,9  or  that  some  of  the  plaintiffs  are  improperly 
made  parties  to  the  suit,10  or  that  a  defendant  is  improperly  joined.11 
If  a  petition  against  two  defendants  shows  a  good  cause  of  action 
as  against  one,  a  joint  demurrer  is  improperly  sustained.12  Only 
the  defendant  who  is  improperly  joined  can  demur.13  If  there  is 
a  joint  demurrer  by  all  the  defendants  it  should  be  overruled  as 
to  those  properly  made  parties.14  If  a  defendant  is  not  a  neces- 
sary party  to  a  suit  he  must  take  advantage  of  the  defect  by  a 
demurrer,  for  if  he  goes  to  trial  he  cannot  then  ask  to  have  his 
name  stricken  out.15  The  fourth  subdivision  of  section  588,16  per- 
mitting a  demurrer  where  there  is  a  defect  of  parties,  and  sec- 

i  Grove  v.  Kansas  City,  75  Mo.  672;        8 Dodson  v.  Lomax,  113  Mo.  555;  Fin- 
Hurst  v.  Ash  Grove,  96  Mo.  168;  John-  ney  v.  Randolph,  68  App.  557. 
son  v.  Mo.  Pac.  R.  Co.,  96  Mo.  340;        9  Kerr  v.  Bell,  44  Mo.  120. 
Buck  v.  People's  R.  Co.,  46  App.  555.  l0  Russell  v.  De  France,  39  Mo.  506. 

2  Paddock  v.   Somes,  102  Mo.   226;       "  Boland  v.  Ross,  120  Mo.  208. 
Seckinger  v.  Philibert  Mfg.  Co.,  129       12  Bank  of  Missouri  v.  Young,  35  Mo. 

Mo.  590.  371. 

a  Johnson  v.  Detrick,  152  Mo.  243.  13  Alnutt  v.  Leper,  48  Mo.  319. 

4  Malone  v.  Fidelity  &  Casualty  Co.,       14  Ancell  v.  Cape  Girardeau,  48  Mo.  80; 

71  App.  1.  Alnutt  v.  Leper,  48  Mo.  319;  Brown  v. 

s  Foster  v.  Mo.  Pac.  R  Co.,  1 1 5  Mo.  165.  Woods,  48  Mo.  330. 

6  White  v.  Collier,  5  Mo.  82.  15  Soeding  v.  Bartlett,  35  Mo.  90. 

'  Cave  v.  Hall,  5  Mo.  59.  1(*  Rev.  Stat.  1899. 


§§  870,  871.]  DEFECTS   IN   PLEADING   WAIVED.  447 

tion  602,1  which  provides  that  if  the  objection  is  not  taken  either 
by  demurrer  or  answer  it  shall  be  deemed  to  be  waived,  apply 
to  an  interplead 

§  870.  Same  —  In  case  of  partners. —  "Where  one  partner  has 
been  defrauded  by  his  copartner  by  a  transfer  of  property,  the 
fact  that  in  an  action  asrainst  the  fraudulent  transferee  of  the 
property  the  colluding  partner  is  not  joined  can  be  taken  advan- 
tage of  only  by  demurrer  or  answer.3  In  an  action  on  a  promis- 
sory note  the  defendant  pleaded  a  counter-claim  for  services 
rendered  as  an  attornej?-,  and  the  reply  was  a  general  denial. 
The  evidence  tended  to  show  that  the  services  were  rendered  by 
the  defendant  and  another  as  partners.  It  was  properly  held  by 
the  trial  court  that  the  fact  of  the  partnership  did  not  affect  the 
counter-claim,  as  it  amounted  only  to  a  defect  of  parties,  and  this 
was  waived  by  a  failure  to  set  it  up  in  the  reply.4 

§  871.  Same  —  Improper  mingling  of  causes  of  action. —  An 
objection  to  the  improper  joinder  of  counts  is  waived  by  plead- 
ing over;5  also  the  objection  that  several  causes  of  action  are 
stated  in  one  count.6  From  an  opinion  of  Judge  Lewis  I  make 
the  following  extract  as  bearing  upon  this  question :  "  The  new 
system,"  he  says,  "  prescribes  certain  exact  rules  for  the  joining 
of  various  causes  of  action  in  the  same  petition,  but  for  very  dif- 
ferent reasons,  and  with  very  different  penalties  for  their  viola- 
tion.7 A  misjoinder  involves  no  incongruous  admixture  of  forms 
or  of  writs,  because  there  is  but  one  form  and  but  one  writ  for 
all  possible  cases.  There  is  no  reason  why  it  should  be  fatal  to 
the  action  j*??-  se,  and  the  law  does  not  declare  it  so.  A  cause  of 
action  ex  delicto  must  not  be  united  with  one  ex  contractu,  but 
why?  The  statute  forbids  it,  and  if  a  reason  for  the  statute 
must  be  found,  it  seems  to  appear  in  the  policy  which  refuses  to 
subject  a  defendant,  against  his  will,  to  diverse  styles  of  warfare 
in  the  same  fight.  Hence  it  is  provided  that  he  may  neverthe- 
less waive  all  such  objections  by  refusing  to  demur."8 

i  Rev.  Stat.  1899.  6  House  v.  Lowell,  45  Mo.  381;  Pick- 

2  Scott- Force  Hat  Co.  v.  Hombs,  127  ering  v.  Miss.  Val.  Tel.  Co.,  47  Mo.  487; 
Mo.  392.  Thompson  v.  School  District,  71  Mo. 

3  Hagar  v.  Graves,  25  App.  164.  495;  Union  Bank  v.  Dillon.  75  Mo.  380; 

4  Winton  State  Bank  v.  Harris,  54  Baker  v.  Raley,  18  App.  5G2.  See  also 
App.  156.     And  it  was  also  held  that  in  this  connection  §  876,  post. 

the  same  rule  applied  to  evidence  tend-  7  As  will  be  seen  from  the  context, 

ing  to  show  that  defendant  had  as-  he  means  "  different  from  those  of  the 

signed  the  counter-claim.  common  law." 

5  Williamson  v.  Fischer,  50  Mo.  198.  8  Sumner  v.  Tuck,  10  App.  269,  277. 


DEFECTS   IN   FLEAPINO   WAIVED.  [§§  872,  873. 

§  872.  Waiver  by  pleading  to  amended  pleading. —  The  right 
of  objecting  to  the  filing  of  an  amended  pleading  is  waived  by 
pleading  to  it.1  Section  G222  provides  that,  after  two  pleadings 
by  tin1  same  party  have  been  adjudged  insufficient,  the  party  filing 
them  may  file  a  third  pleading,  if  he  files  it  instanter.  Neverthe- 
less, if  the  court  grants  time  for  this  purpose,  and  the  adverse  party 
answers  or  replies  to  the  pleading  subsequently  filed,  he  waives 
all  right  to  object  that  it  was  not  filed  instanter?  If  the  defend- 
ant pleads  a  general  denial  to  a  third  amended  petition,  which 
changes  the  cause  of  action  set  out  in  the  original  petition,  and 
goes  to  trial  on  the  pleadings  as  thus  made  up,  he  waives  all  ob- 
jection to  a  fourth  amended  petition  containing  allegations  simi- 
lar to  those  contained  in  the  third,  on  the  ground  that  it  was  a 
departure  from  the  original  petition.4  So  if  the  third  amended 
petition  is  but  a  repetition  of  the  original  petition,  and  a  motion 
to  strike  it  out  is  overruled,  the  objection  to  it  is  waived  if  de- 
fendant answers  it,  although  a  demurrer  has  been  sustained  to 
the  first  amended  petition.  And  by  so  pleading  over,  defendant 
also  waives  the  objection  that  the  third  amended  petition  changes 
the  cause  of  action.5  .  For  if  defendant  claims  that  an  amended 
petition  changes  the  cause  of  action,  he  must  attack  the  amend- 
ment at  the  time  it  is  filed  by  motion  to  strike  it  out,  or  by  some 
other  proper  motion;  if  he  files  an  answer  to  it  he  accepts  the 
amendment  and  waives  all  objection  to  it.6  Moreover,  if  defend- 
ant makes  the  objection  and  his  objection  is  overruled,  and  he 
then  goes  to  trial  on  the  amended  petition,  he  waives  all  error  in 
permitting  the  amendment.7  The  objection  that  one  was  im- 
properly made  a  party  plaintiff  after  the  filing  of  the  original  peti- 
tion must  be  made  by  demurrer  or  answer  or  it  will  be  waived.8 

§  873.  By  going  to  trial. —  All  objections  as  to  form  must  be 
taken  before  the  parties  proceed  to  trial,  as  objections  of  that 
character  will  not  receive  any  countenance  after  a  trial  is  had 
on  the  merits.9  The  objection  that  the  execution  of  the  instru- 
ment sued  on  was  not  denied  under  oath  cannot  be  raised  for 

JBeardslee  v.  Morgner,  4  App.  139;  Spurlock  v.  Ma  Pac.  R  Co.,  104  Mo. 

Hill  v.  Morris,  21  App.  256;  Ward  v.  658;  Matthews  v.  Perdue,  79  App.  149 

Pine,  50  Ma  38.  Bender  v.    Zimmerman,  135  Mo.  53 

2  Rev.  Stat  1899.  Hurley  v.  Mo.  Pac.  R  Co.,  57  App.  675 

3  Hamlin  v.  Carruthers,  19  App.  567.  7  Hubbard  v.  Quisenberry,  32  App 

4  Spurlock  v.  Mo.  Pac.  R.  Co.,  104  459 ;  State  ex  rel.  v.  Gage,  52  App.  464 
Mo.  658.  Hurley  v.  Mo.  Pac.  R  Co.,  57  App.  675, 

5Sanguinette  v.  Webster,  153  Mo.  8Ragan  v.  Kansas  City  &  S.  R  Co., 
343.  Ill  Mo.  456. 

6Scoville  v.  Glassner,  79  Mo.  449;        9  Saulsbury  v.  Alexander,  50  Mo.  142. 


§§  874,  875.]  DEFECTS    IN   PLEADING   WAIVED.  449 

the  first  time  in  the  appellate  court;  if  no  motion  was  made  for 
judgment  on  the  pleadings,  no  objection  made  to  the  introduc- 
tion of  evidence  on  the  issues,  and  the  motion  for  a  new  trial 
did  not  specify  that  the  answer  failed  to  deny  the  execution  of 
the  contract  under  oath,  the  point  will  be  deemed  waived.1  Ob- 
jections which  go  to  the  definiteness  of  the  petition  are  warved 
if  not  presented  before  verdict.2  So  are  all  objections  which  do 
not  go  to  the  foundation  of  the  plaintiff's  cause  of  action.3  If  a 
petition  is  objected  to  for  the  first  time  at  the  trial,  it  will  be 
upheld  if  it  states  a  cause  of  action,  although  it  might  have  been 
adjudged  insufficient  on  demurrer  or  motion.4  But  the  objection 
that  the  petition  fails  to  state  a  cause  of  action  is  never  waived, 
and  such  defect  is  not  cured  by  verdict  or  judgment.5 

§  874.  Where  throughout  the  trial  defendant  treated  the  pe- 
tition as  sufficiently  tendering  the  issue  of  defendant's  negli- 
gence, and  no  objection  was  made  to  the  introduction  of  evidence 
by  plaintiff  on  this  issue,  and  defendant  presented  this  issue  to  the 
jury  by  instructions,  he  can  raise  no  objection  to  the  petition 
after  verdict.6  So  if  both  parties,  by  the  introduction  of  evi- 
dence and  by  their  instructions,  treat  an  issue  as  properly  before 
the  jury,  the  objection  that  such  issue  was  not  within  the  aver- 
ments of  the  petition  is  waived.7 

§  875.  The  rule  applies  to  answers, — "While  an  answer  which 
denies  the  material  allegations  of  the  petition,  without  specify- 
ing what  allegations  are  deemed  material,  is  bad  pleading,  yet  if 
no  objection  is  made  on  this  ground  in  the  trial  court,  and  the 
parties  at  the  trial  treat  it  as  sufficient,  its  sufficiency  will  not  be 
considered  by  the  appellate  court.8  Where  a  defective  plea  in 
abatement  was  filed  by  defendant  in  an  attachment  proceeding, 
but  plaintiff  took  no  exception  to  the  plea  before  the  trial  or  dur- 
ing the  progress  of  the  trial,  treating  it  as  putting  in  issue  the 
truth  of  the  facts  alleged  in  the  affidavit,  it  will  be  held  good 
after  verdict.9  While  an  administrator  cannot,  to  the  detriment 
of  the  creditors,  distributees  or  legatees,  discharge  a  debt  due  the 
estate  by  the  cancellation  of  his  individual  liability  to  a  debtor 

i  Kelly  v.  Thuey,  143  Mo.  422.  6  Covey  v.  Han.  &  St.  J.  R.  Co.,  27 

2  State  to  use  v.  Berning,  74  Mo.  87.  App.  170. 

» Williams  v.  Bugg,  10  App.  586.  7  Hilz  v.  Mo.  Pac.  R.  Co.,  101  Mo.  3a 

4  Benham  v.  Taylor,  66  App.  308.  See  next  succeeding  section. 

6  Weber  v.  Union  Mut.  Life  Ins.  Co.,  8  Smith  v.  Lindsey,  89  Mo.  76. 

5  App.  51 ;  Brown  v.  Shock,  27  App.  9  Bailey  v.  O'Bannon,  28  App.  39. 
351 ;  Walker  v.  Point  Pleasant,  49  App. 
244. 

Mo.  Code  Tu—  29 


450  DEFECTS    IN    PLEADING    WAIVED.  [§  870. 

of  the  estate,  yet  such  debtor  is  entitled  to  a  credit  by  way  of 
equitable  set-off,  where  its  allowance  will  not  affect  the  rights  of 
any  one  except  those  of  the  administrator  himself  as  heir  or  dev- 
isee, and  by  means  of  this  allowance  justice  will  be  done  between 
the  Jebtor  and  the  administrator.  And  if  evidence  of  such  a  set- 
otV  'was  received  without  objection,  and  was  thus  before  the  court 
with  the  implied  admission  that  the  pleadings  were  broad  enough 
to  allow  its  reception,  such  judgment  may  be  given  upon  the  facts 
as  the  right  of  the  matter  requires,  although  there  was  no  special 
plea  of  equitable  set-off.1 

§  876.  Objections  not  made  in  trial  court. —  Where  two 
causes  of  action  are  improperly  joined  in  one  count,  unless  an 
objection  on  that  ground  is  made  in  the  trial  court,  at  least  by  a 
motion  in  arrest,2  it  will  be  considered  as  waived.3  So  if  no  objec- 
tion is  made,  before  the  cause  is  submitted  to  the  jury,  that  the 
petition  improperly  joins  an  action  on  contract  with  one  for  a  tort, 
it  will  then  be  too  late,  if  there  is  no  claim  of  surprise ;  and  this  is 
true,  though  the  evidence  warrants  a  recovery  on  contract,  but  the 
action  has  been  treated  both  by  court  and  counsel  as  one  ex  delicto* 
A  petition  contained  two  counts:  one  on  contract  and  the  other  in 
assumpsit,  but  both  counts  covered  the  same  matter.  At  the 
close  of  the  evidence  plaintiff  dismissed  as  to  the  second  count 
and  went  to  the  jury  on  the  first.  It  was  held  that,  even  if  the 
court  erred  in  overruling  a  motion  to  compel  plaintiff  to  elect,  its 
error  would  not  be  reviewed  after  verdict.4     If  in  an  action  for 

1  State  ex  rel.  v.  Donegan,  94  Mo.  66.  the  statute  forbids  it,  for  the  reason 

2  Or  by  a  motion  to  compel  plaintiff  that  a  defendant  cannot  be  subjected 
to  elect.  Wallace  v.  Kansas  City  &  against  his  will  to  diverse  styles  of 
So.  R.  Co.,  47  App.  491.  warfare  in  the  same  fight.     But  if 

3  Brown  v.  Home  Savings  Bank,  5  such  warfare  is  not  "against  his  will," 
App.  1;  Brent  v.  Shelly,  5  App.  581;  the  misjoinder  is  not  fatal.  "For," 
Peckham  v.  Lindell  Hotel  Co.,  9  App.  says  the  learned  judge,  "  it  is  provided 
459.  The  decision  in  Gray  v.  Payne,  43  that  he  may  nevertheless  waive  all 
Mo.  203,  no  longer  possesses  autiiority.  such  objections  by  refusing  to  demur. 
In  fact,  it  is  expressly  overruled  in  If  he  accepts  the  fight  as  tendered,  the 
Sweet  v.  Maupin,  65  Mo.  65,  72.  law  will  not  permit  him  afterwards  to 

4  Sumner  v.  Tuck,  10  App.  269.  object,  nor  will  it  find  that  by  reason 

5  Gardner  v.  Crenshaw,  122  Mo.  79.    of  the  misjoinder  the  foundation  of 
In  the  case  cited  just  above  (Sum-    the  action  is  insufficient  to  sustain  it. 

ner  v.  Tuck,  10  App.  269)  the  court  The  statute  is  explicit  that  if  the  ob- 

explains  at  some  length  the  reasons  jection  of  misjoinder  be  not  raised  by 

upon  which  these  rules  rest.    It  says,  demurrer  or  answer  it  shall  be  deemed 

speaking  through  Lewis,  P.  J.,  that  to  be  waived."     (p.  277.)    That  case 

a  cause  of  action  ex  delicto  cannot  be  was  one  in  which  the  first  count  stated 

united  with  one  ex  contractu  because  facts  sufficient  to  constitute  a  cause 


876.] 


DEFECTS    IN    PLEADING   WAIVED. 


451 


slander  the  petition  joins  in  one  count  words  imputing  to  the 
plaintiff  differeDt  crimes,  the  objection  is  waived  unless  defend- 
ant moves  for  a  rule  requiring  the  plaintiff  to  elect.1 


of  action  ex  delicto,  but  upon  rejecting 
certain  words  as  surplusage  there  re- 
mained a  sufficient  statement  of  an 
action  ex  contractu.  In  its  ex  delicto 
capacity  it  was  properly  joined  with 
the  second  count,  which  was  one 
ex  delicto,  and  therefore  a  demurrer 
could  not  reach  it.  But  if  it  were  to 
be  treated  as  a  count  for  money  had 
and  received,  that  is,  one  ex  contractu, 
there  would  be  a  misjoinder.  The 
oourt  held  that,  whether  or  not  a  de- 
murrer would  have  been  sustained  to 
the  petition  on  the  ground  of  a  mis- 


joinder, such  demurrer  would  at  least 
have  shown  the  defendant's  objection, 
and  would  have  prevented  a  waiver 
of  the  defect,  if  any  defect  there  were. 
But  inasmuch  as  the  defendant  failed 
to  demur  and  failed  to  raise  the  objec- 
tion in  his  answer,  he  could  not  raise 
the  question  whether  the  petition  was 
defective  by  interposing  a  demurrer 
to  the  evidence  at  the  close  of  plaint- 
iff's casa 

i  Christal  v.  Craig,  80  Mo.  367. 

Consult  in  this  connection,  §  866, 
ante, 

3 


CHAPTER  XXXYII. 


HOW  DEFECTS  IN  PLEADING  MAY  BE  CURED. 


§  877.  Defects  which  cannot  be  cured. 

878.  Defect    cannot    be    cured   by 

agreement  of  parties. 

879.  Defects  cured  by  evidence. 


§  880, 


By  subsequent  pleading  of  same 
party. 
881.  By  the  adversary's  pleading. 
883.  Same  —  Instances. 


§  877.  Defects  which  cannot  be  cured. —  It  has  been  shown 
in  the  preceding  chapter  that  defects  of  substance  cannot  be 
waived.  A  fortiori,  such  defects  cannot  be  cured.  Thus  the 
fundamental  sufficiency  of  a  petition  always  remains  an  open 
questi<\)rl  And  it  has  been  held  that,  where  a  bill  is  brought 
against  two  defendants  to  set  aside  two  deeds  of  trust,  one  of 
which  is  executed  by  both  defendants  and  the  other  by  only  one 
of  them,  the  defect  cannot  be  cured  by  dismissing  as  to  the  party 
who  did  not  execute  the  mortgage  mentioned  in  the  second 
count,  if  he  did  execute  the  one  mentioned  in  the  first  count,  be- 
cause he  was  a  necessary  party  to  a  suit  seeking  to  annul  that 
mortgage.2 

§  878.  Defect  cannot  be  cured  by  agreement  of  parties. — 
A  defective  petition  cannot  be  cured  by  an  agreement  of  the 
parties,  since  the  sufficiency  of  a  pleading  is  a  question  of  lawr 
as  to  which  no  valid  agreement  can  be  made.3 

§  879.  Defects  cured  by  evidence. —  Though  statements  in  a 
pleading  are  defective  and  uncertain,  yet  their  defects  and  un- 
certainties may  be  cured  by  evidence  given  in  support  of  them.4 

§  880.  By  subsequent  pleading  of  same  party. —  If  a  petition 
fails  to  state  one  or  more  of  the  elements  essential  to  a  recovery, 
the  defect  is  not  cured  by  inserting  such  allegations  in  the  reply.5 
Thus  where,  in  an  action  against  the  drawer  of  a  bill  of  ex- 
change, the  acceptance  was  a  conditional  one,  and  the  petition 
contained  no  averments  to  the  effect  that  the  drawer  had  knowl- 


1  Epperson  v.  Postal  Telegraph  Cable 
Co.,  155  Mo.  346.     See  §  866,  ante. 

-  Jamison  v.  Culligan,  151  Mo.  410. 

3  Wells  v.  Covenant  Mut.  Ben.  Ass'n, 
120  Mo.  630. 


4  Murphy  v.  North  British  Ins.  Co., 
70  App.  78.  This  subject  is  more 
fully  discussed  in  considering  the  stat- 
ute of  jeofails,  %  886  et  seq.,  post. 

»  Taylor  v.  Newman,  77  Mo.  257. 


j§  881,  882.]  DEFECTS    IN   PLEADING   CURED. 


453 


edge  that  the  acceptance  was  conditional,  or  had  in  any  way 
waived  his  right  to  an  absolute  acceptance,  the  defect  in  the  pe- 
tition is  not  cured  by  reason  of  the  fact  that  the  reply  contained 
an  averment  that,  after  non-payment  of  the  bill,  the  drawer, 
with  knowledge  of  the  acceptance  and  the  non-payment,  agreed 
to  pay  it.1 

§  881.  By  the  adversary's  pleading.— The  rule  is  well  settled 
that  a  pleading,  defective  by  reason  of  the  omission  of  some  ma- 
terial allegation,  may  be  aided  by  the  pleading  of  the  adverse 
party.2  Any  omission  to  state  a  material  fact  in  a  pleading  will 
be  obviated  if  the  pleading  of  the  opponent  puts  the  matter  in 
issue.3  Thus  an  insufficient  averment  in  a  petition  may  be  helped 
out  by  the  answer.4  For  if  the  omitted  fact  is  denied  in  the  an- 
swer, the  defect  in  the  petition  will  be  cured.5  The  petition  may 
be  aided  by  the  answer,  notwithstanding  it  is  fatally  defective;6 
because,  if  the  omitted  allegation  is  supplied  by  the  pleading  of 
the  adverse  party,  it  is  the  same  as  if  it  were  inserted  in  the 
party's  own  pleading.7  And  if  the  averments  of  the  answer  are 
such  as  to  supply  the  defects  in  the  petition,  such  an  answer  in 
effect  fills  the  purpose  of  an  amended  petition.8  Still  in  all  these 
cases  the  recovery  is  on  the  petition  and  not  on  the  answer.9 

§  882.  By  pleading  of  adversary  —  Instances. —  Where,  in  a 
proceeding  for  partition,  with  a  prayer  for  an  accounting  as  to 
the  rents  and  profits  of  the  land,  the  petition  fails  to  distinctly 
charge  that  defendant  had  excluded  plaintiff  from  the  joint  oc- 
cupancy of  the  land,  this  defect  is  cured  by  an  averment  in  the 
answer  that  defendant  is  in  the  actual  and  exclusive  possession 
of  the  premises.10  In  an  action  to  enforce  a  mechanic's  lien, 
brought  by  one  who  has  furnished  materials  to  a  contractor  or 
subcontractor  for  the  erection  of  a  building,  it  is  essential  that 
the  petition  should  contain  an  averment  that  the  materials  were 
furnished  for  such  building  and  that  they  actually  went  into  the 
building.     But  an  omission  of  such  averment  from  the  petition 

i  Taylor  v.  Newman,  77  Mo.  257.  5  Grace  v.  Nesbitt,  109  Mo.  9. 

2  Price  v.  Patrons'  Home  Prot.  Co.,  6  Donaldson    v.   Butler  County,  98 

77  App.  236.  Mo.  163. 

3 Garth   v.  Caldwell,  72    Mo.    622;  'Price  v.  Patrons' Home  Prot.  Co., 

Hughes  v.  Carson,  90  Mo.  399.  77  App.  236. 

*  Allen  v.  Chouteau,   102  Mo.  309;  8  Allen  v.  Chouteau,  102  Mo.  309. 

Mendenhall  v.  Leivy,  45  App  20;  Keen  9  Whipple  v.  Peter  Cooper  B.  &  L. 

v.  Munger,  52  App  660;  Whipple  v.  Ass'n,  55  App.  554 

Peter  Cooper  B.  &  L.  Ass'n,  55  App.  10  Millington  v.  Millington,  7  Mo.  446. 
554 


454  DEFECTS    IN    TLEAD1NG    CURED.  [§§  883,  884. 

is  cured  by  an  averment  in  the  answer  that  the  materials  were 
not  used  in  the  construction  of  the  building.1  If,  in  an  action 
of  replevin,  the  petition  omits  to  state  directly  that  the  property 
is  in  the  possession  of  defendant,  the  omission  will  be  cured  if 
the  answer  confesses  that  fact,  though  only  by  implication.2  And 
if  the  petition  fails  to  show  what  interest  plaintiff  has  in  the 
property,  it  is  aided  by  an  answer  which  sets  out  the  plaintiff's 
interest.3 

§  8S3.  A  bill  was  filed  to  enjoin  the  foreclosure  of  a  deed  of 
trust  given  to  secure  certain  notes,  upon  the  ground  that  the 
notes  were  procured  by  fraud,  the  notes  having  been  transferred 
to  a  bank.  There  was  no  allegation  in  the  petition  that  the 
bank  was  not  a  purchaser  of  the  notes  in  good  faith.  But  in  its 
answer  the  bank  alleged  the  purchase  of  the  notes  before  ma- 
turity for  full  value,  and  without  any  notice  of  the  equities  as- 
serted by  plaintiff.  It  was  held  that  this  averment  of  the  answer 
supplied  any  lack  of  the  petition  in  this  respect.4  If,  in  an  ac- 
tion against  A  and  Bona  promissory  note,  the  petition  contains 
no  averment  that  defendants  were  partners,  but  the  note  was- 
signed  "  A  &  Co.,"  a  separate  answer  by  B,  in  which  he  avers 
that  he  was  not  a  partner  of  A,  and  denies  the  execution  of  the 
note,  is  sufficient  to  supply  the  defect  in  the  petition.5 

§  884.  "Where  plaintiff  has  released  the  cause  of  action,  but 
claims  that  the  release  was  obtained  by  fraud,  he  may,  without 
tendering  back  what  he  has  received  under  the  release,  bring  an 
action  setting  up  the  release  and  allege  that  it  was  obtained  by 
fraud,  and  asking  for  the  difference  between  the  damages  to  which 
he  is  entitled  and  the  amount  received  under  the  release.  If  this 
issue  is  not  made  in  the  petition,  but  does  appear  by  the  answer 
and  the  reply,  the  irregularity  is  merely  one  of  form,  and  will  not 
affect  a  verdict  in  accordance  with  the  prayer  of  the  petition.6 
An  action  was  brought  against  a  railroad  company  for  the  death 
of  plaintiff's  husband,  which  was  alleged  to  have  resulted  from 
the  negligence  of  the  employees  of  the  company  while  operating 
a  train.  The  petition  was  defective  in  not  showing  what  relation 
the  deceased  sustained  to  the  railroad  company,  and  therefore  in 
failing  to  show  the  measure  of  defendant's  duty  to  the  deceased. 
But  the  answer  tendered  the  issue  that  deceased  was  not  at  the 

i  Grace  v.  Nesbitt,  109  Mo.  9.  5  Stephens  v.  Frampton,  29  Mo.  263. 

2  Garth  v.  Caldwell,  72  Mo.  622.  6  Girard  v.  St.  Louis  Car  Wheel  Co., 

» Dillard  v.  McClure,  64  App.  488.  123  Mo.  358. 
*  Henry  v.  Sneed,  99  Ma  407. 


§  885.]  DEFECTS  IN  PLEADING  CUBED.  455 

time  a  passenger  on  the  train,  and  plaintiff  by  her  reply  joined 
in  the  issue.  It  was  held  that  the  defect  of  the  petition  was  thus 
cured.1 

§  885.  Though  the  petition  fails  to  allege  the  performance  of  a 
condition  precedent,  or  a  sufficient  excuse  for  its  non-perform- 
ance, yet  if  the  answer  affirmatively  pleads  non-performance,  and 
plaintiff  takes  issue  by  his  reply,  the  defect  in  the  petition  will 
be  helped  out  by  the  answer.2  Thus  where  the  action  was  on  a 
bond  guaranteeing  the  performance  by  defendant  of  a  contract 
to  convey  lands,  the  petition  was  defective  in  not  alleging  per- 
formance of,  or  an  offer  to  perform,  the  contract  by  plaintiff;  the 
answer,  however,  alleged  that  defendant  was  able,  ready  and 
willing  to  perforin  the  contract,  but  that  plaintiff  refused  to  com- 
ply with  his  part  of  the  agreement  and  the  conditions  thereof  to 
be  performed  by  him.  The  reply  denying  these  allegations,  it 
was  held  that  the  issues  were  properly  presented  by  the  plead- 
ings.3 If  the  petition  in  an  action  for  slander  based  upon  a  charge 
of  perjury  is  defective  in  not  stating  how  the  alleged  perjury 
was  committed,  the  defect  will  be  aided  by  a  plea  of  justifica- 
tion, setting  forth  the  circumstances  under  which  the  alleged 
false  oath  was  taken.4 

»  Wagner  v.  Mo.  Pac.  R.  Co.,  97  Mo.  App.  604;  Price  v.  Patrons'  Home  Prot 
512.  Co..  77  App.  236. 

2  Beckman  v.  Phoenix  Ins.  Co.,  49        3  Ricketts  v.  Hart,  150  Mo.  64. 

4  Atteberry  v.  Powell,  29  Mo.  429. 


CHAPTER  XXXVIII. 


DEFECTS  CURED  BY  VERDICT  OR  BY  JUDGMENT. 


§  886.  The  statute  of  jeofails. 

887.  Cases  applying  the  statute. 

888.  Where  a  demurrer  would  have 

lain. 

889.  Defects  cured  by  default 

890.  Defects  cured  by  verdict. 

891.  Defects  cured  by  verdict  can- 

not be  reached  by  motion  in 
arrest 

892.  Construction  of  pleadings  under 

this  rule. 


§  893.  Further  application  of  the  doc- 
trine. 

896.  There  must  be  evidence  as  to 

the  omitted  averment. 

897.  The  doctrine  applies  to  a  find- 

ing by  the  court 

898.  It  applies  both  to  answers  and 

replies. 

899.  Irregularities  cured. 


§  886.  The  statute  of  jeofails. —  There  are  many  defects  for 
which  a  pleading  will  be  condemned  if  objection  is  made  before 
the  trial,  or  even  during  the  trial,  which  will  be  entirely  disre- 
garded if  no  objection  is  taken  until  after  a  verdict  is  rendered. 
The  statute,  commonly  known  as  the  statute  oi  jeofails,  provides 
that  no  verdict  shall  be  stayed,  nor  any  judgment  after  trial  upon 
confession  or  by  default  be  reversed,  impaired  or  in  any  way  af- 
fected, by  reason  of  the  following  imperfections,  omissions  or 
defects:  First,  for  want  of  a  writ;  second,  for  any  default  or  de- 
fect of  process  or  for  misconceiving  the  process  or  for  awarding 
the  same  to  the  wrong  officer;  third,  for  any  imperfect  or  insuf- 
ficient return;  fourth,  for  any  variance  between  the  writ  and  the 
petition ;  fifth,  for  any  mispleading,  miscontinuance  or  discon- 
tinuance, insufficient  pleading,  jeofail  or  misjoining  issue;  sixth, 
for  want  of  any  warrant  of  attorney,  except  in  case  of  judgment 
by  confession;  seventh,  for  a  party  under  twenty-one  having  ap- 
peared by  attorney,  if  the  verdict  or  judgment  is  in  his  favor; 
eighth,  for  the  want  of  any  allegation  or  averment  on  account  of 
which  omission  a  demurrer  could  have  been  maintained ;  ninth, 
for  omitting  any  allegation  or  averment  without  proving  which 
the  triers  of  the  issue  ought  not  to  have  given  such  a  verdict; 
tenth,  for  any  mistake  in  the  name  of  a  person,  or  in  any  sum 
of  money,  or  in  any  description  of  property,  or  in  the  date, 
month  or  year,  when  the  correct  name,  sum  or  description  shall 


§  887.]  DEFECTS    CUBED    BY    VERDICT    OB    JUDGMENT.  457 

have  been  once  rightly  alleged  in  the  proceedings;  eleventh,  for 
a  mistake  in  the  name  of  a  juror  or  officer;  twelfth,  for  the  want 
of  a  venue,  if  the  cause  was  tried  in  the  proper  county;  thirteenth, 
for  any  informality  in  entering  a  judgment  or  making  up  the  rec- 
ord thereof,  or  in  any  continuance  or  other  entry  upon  the  record ; 
fourteenth,  for  any  other  default  or  negligence  of  any  clerk  or 
officer  of  the  court,  or  of  the  parties,  or  of  their  attorneys,  by 
which  neither  party  shall  have  been  prejudiced.1  The  courts  are 
inclined  to  give  this  statute  a  liberal  construction,  where  it  can 
be  done  without  invading  substantial  rights.2  The  statute  can- 
not,  however,  come  into  play  as  a  curative  agency  unless  juris- 
diction has  attached ;  it  cannot  cure  a  defect  in  the  process  or  in 
the  service  of  process,  notwithstanding  the  provisions  of  the 
second  subdivision  of  the  section.3  A  misnomer  of  the  defend- 
ant may  be  cured  by  the  statute  of  jeofails,  where  he  was  actu- 
ally served  and  appears  by  his  right  name,  and  makes  a  defense 
on  the  merits.4  The  failure  to  sign  an  answer  is  not  matter  of 
substance,  but  is  a  defect  which  is  cured  by  the  statute  of  jeofails? 
§  887.  Cases  applying  the  statute. —  In  an  action  on  a  policy 
of  insurance  the  petition  alleged  the  execution  and  delivery  of 
the  policy,  the  description  and  situation  of  the  property,  the  pay- 
ment of  the  premium,  the  total  destruction  of  the  property  by 
fire,  and  its  value.  It  further  alleged  that  immediately  after  the 
loss  plaintiff  notified  defendant  and  made  proofs  of  loss,  and  that 
plaintiff  had  duly  performed  all  the  terms  and  conditions  of  the 
policy.  There  was,  however,  no  express  allegation  that  the  in- 
demnity claim  was  due  and  payable  at  the  time  of  the  commence- 
ment of  the  action.  It  was  held  that  this  fact  was  clearly  infer- 
able from  the  facts  pleaded,  and  that  under  the  statute  of  jeofails 
a  verdict  in  favor  of  plaintiff  should  not  be  disturbed.6  In  a  suit 
by  an  infant,  the  failure  of  the  petition  to  allege  the  appointment 
of  a  guardian  or  next  friend  to  prosecute  the  suit  constitutes  an 
objection  which  goes  merely  to  the  legal  capacity  of  the  plaintiff 

1  Rev.  Stat.  1899,  sec.  672.   Robinson    a  husband  as  co-defendant.    Latshaw 
v.  Mo.  Ry.  Const  Co.,  53  Mo.  435,  and    v.  McNees,  50  Mo.  381. 

Hall  v.  Lane,  123  Mo.  633,  are  cases  4  State  ex  reL  v.  Burr,  143  Mo.  209. 

coming  within  the  eighth  and  ninth  5  Cochran  v.  Thomas,  131  Mo.  258. 

subdivisions    of    the    above    section.  All   the  succeeding  sections  of  this 

Duncan  v.  Oliphant,  59  App.  1,  is  a  chapter  treat  of  matters  which  come 

case  under  the  twelfth  subdivision.  more  or  less  directly  within  the  pro- 

2  Bick  v.  Wilkerson,  62  App.  31.  visions  of  the  statute  of.  jeofails. 

3  Rohrer  v.  Oder,  124  Mo.  24.  •>  Murphy  v.  North  British  Ins.  Co., 
It  does  not  cure  the  failure  to  join    70  App.  78. 


458  DEFECTS    CURED   BY   VERDICT   OR   JUDGMENT.       [§§  888,  889. 

to  sue,  and,  if  no  objection  is  taken  to  it  before  the  trial,  it  is  such 
an  imperfection  as  is  cured  by  the  statute  of  jeofails} 

§  888.  Where  a  demurrer  would  have  lain.— The  provision 
contained  in  the  eighth  subdivision  of  the  above  section 2  is  one 
the  meaning  of  which  is  somewhat  obscure.     I  am  not  aware  of 
any  decisions  by  the  appellate  courts  of  this  state  which  dis- 
tinctly define  the  extent  to  which  a  failure  to  demur  on  the 
ground  that  some  allegation  is  omitted,  or  the  overruling  of  a 
demurrer  which  sets  up  such  a  ground,  will  bar  the  demurrant 
from  raising  the  question  at  a  subsequent  stage  of  the  case.     As 
has  been  shown  in  the  preceding  two  chapters,  the  lack  of  a  non- 
essential averment  may  be  waived,  and  such  lack  may  be  cured 
by  verdict.8     It  is  a  reasonable  interpretation  of  the  language 
used  in  the  subdivision  in  question  that  it  goes  only  to  that  ex- 
tent.4   One  thing  is  settled  beyond  a  doubt,  and  that  is  that  the 
clause  under  discussion  cannot  refer  to  a  total  failure  to  state  a 
cause  of  action.     For,  by  the  express  provisions  of  the  statute 5 
and  in  accordance  with  the  entire  current  of  authority  in  this 
state,  such  total  failure  to  set  forth  a  cause  of  action  is  never 
waived  and  cannot  be  cured,  but  may  be  taken  advantage  of 
though  it  be  raised  for  the  first  time  in  the  appellate  court.    But, 
as  is  said  by  Sherwood,  J.,  in  Pomeroy  v.  Benton,6  "if  the  sub- 
stantial averments  are  there,  and  the  adversary  overlooks  mere 
formal  defects,  his  statutory  right  to  indulge  in  critical  objec- 
tions is  swallowed  up  in  his  statutory  waiver ;  thenceforward  he 
must  address  himself  to  the  merits  of  the  case." 7 

§  889.  Defects  cured  by  default.—  If  a  judgment  is  rendered 
by  default  it  will  not  be  reversed,  impaired  or  in  any  way  af- 
fected by  reason  of  the  omission  of  an  allegation  on  account  of 
which  a  demurrer  would  lie,  if  the  petition  states  a  cause  of  ac- 
tion.8 Where  there  are  several  counts  in  the  petition  and  one  is 
substantially  defective,  the  statute  does  not  reach  it,  and  the  de- 
fect is  not  cured  by  default.9 

i  Lyddon  v.  Dose,  81  App.  64.  24  App.  516,  525.    See  the  two  succeed- 

2  Rev.  Stat.  1899,  sec.  672;  see  §  886,    ing  sections. 

ante.  5  Rev.  Stat.  1899,  sec.  602. 

3  Murphy  v.  North  British  Ins.  Co.,        6  57  Mo.  531. 

70  App.  78,  83.  7  57  Mo.,  p.  550.    See  also  Garner  v. 

*  This  view  is  strengthened  by  the  McCullough,  48  Mo.  318;  Saulsbury  v. 

decisions  which  are  collected  in  the  Alexander,  50  Mo.  142. 

chapter    on    "  The    Demurrer "    (ch.  8  Robinson  v.  Mo.  Ry.  Const  Co.,  53 

XXXII),  and  by  the  decision  of  the  Mo.  435. 

court  of  appeals  in  Graham  v.  Allison,  9  Neidenberger  v.  Campbell,  11  Mo. 

359.    See  §  890,  n.  3. 


§  890.]  DEFECTS   CUBED   BY   VEKDICT   OB   JUDGMENT.  459 

§  890.  Defects  cured  by  verdict.—  The  ninth  subdivision  of 
section  672 1  provides  for  the  curing  of  a  defect  in  pleading  by 
the  verdict,  including,  as  we  shall  see,  the  finding  of  a  court. 
Under  this  subdivision  a  verdict  is  not  to  be  stayed  nor  a  judg- 
ment affected  or  impaired  for  the  omission  in  a  pleading  of  any 
allegation  or  averment  without  proving  which  the  triers  of  the 
issues  ought  not  to  have  given  such  a  verdict.  The  rule  that 
certain  errors  and  defects  in  pleading  may  be  cured  by  the  ver- 
dict or  by  the  judgment  is  not  a  new  one,  and  was  not  introduced 
by  the  Code.  The  rule  of  the  common  law  was  that  where  a 
matter  is  so  essentially  necessary  to  be  proved  that  had  it  not 
been  given  in  evidence  the  jury  could  not  have  given  such  a  ver- 
dict, then  the  want  of  stating  that  matter  in  express  terms  was 
cured  by  the  verdict,  provided  the  declaration  contained  terms 
sufficiently  general  to  comprehend  the  omitted  averment  in  fair 
and  reasonable  intendment.  And  a  like  rule  prevails  under  the 
Code.2  But  at  common  law,  and  the  rule  is  substantially  the 
same  under  the  code  practice,  the  verdict  did  not  cure  the  lack 
of  an  averment  of  a  substantial  constitutive  fact.3  Thus,  in  an 
action  of  covenant,  a  failure  to  allege  with  whom  the  covenant 
was  made,  and  to  allege  a  performance  of  conditions  precedent, 
was  not  cured  by  a  judgment  by  default.3  For,  in  order  that 
the  defects  of  statement  shall  be  cured  by  the  verdict,  the  peti- 
tion must  state  a  cause  of  action.4  A  failure  to  state  facts  suffi- 
cient to  constitute  a  cause  of  action  is  radical  and  incurable.5 
Moreover,  if  the  fact  which  the  plaintiff  fails  to  aver  is  one  of 
the  essential  or  constituent  elements  of  the  cause  of  action,  the 
verdict  does  not  cure  the  defect,6  since  it  is  only  where  a  material 
averment  is  defectively  stated,  and  not  where  it  is  wholly  omit- 
ted, that  the  defect  is  cured  by  verdict.7  But  if  the  petition  im- 
pliedly states  a  cause  of  action,  and  it  is  not  attacked  by  a 
demurrer  or  a  motion  to  make  definite,  it  will  be  held  good  after 
verdict.8     So,  too,  if  it  is  not  essentially  defective,  and  the  de- 

1  §  886,  ante.  Clark  v.  Whittaker  Iron  Co.,  9  App. 

2  International    Bank   v.    Franklin    446. 

County,   65    Mo.    105;    Salmon    Falls        6  Staley  House  Furn.  Co.  v.  Wallace, 

Bank  v.  Leyser,  116  Mo.  51.  21  App.  128;  Story  v.  Araer.  Cent.  Ins. 

3  Keatty  v.  McLaugherty,  4  Mo.  221.  Co.,  61  App.  534;  Freymark  v.  McKin- 
*  Crone  v.  Mallinckrodt,  9  App.  316;  ney  Bread  Co.,  55  App.  435. 

Pry  v.  Han.  &  St.  J.  R.  Co.,  73  Mo.  123;  7  Frazer    v.    Roberts,    32    Mo.    457; 

Lingenfelter  v.  Phoenix  Ins.  Co.,  19  Wells  v.  Covenant  Mut  Ass'n,  126  Mo. 

App.  252;  Mace  v.  Vendig,   23  App.  630. 

353,  » Munford  v.  Keet,  65  App.  502. 
a  Weil  v.  Greene  County,  69  Mo.  281 ; 


-100  DEFECTS    CURED    BY    VERDICT   OR   JUDGMENT.       [§§  S91-S93. 

feetive  statement  of  the  essential  allegations  is  supplemented  by 
the  admissions  of  the  answer,  the  petition  is  sufficient  after  ver- 
dict.1 In  every  case  of  a  mere  defective  statement  of  essential 
farts,  if  it  appears  after  verdict  that  the  verdict  could  not  have 
been  given,  or  the  judgment  rendered,  without  proof  of  the 
matter  omitted,  the  verdict  will  cure  the  defect.2 

§  S91.  Defects  cured  by  verdict  cannot  be  reached  by  mo- 
tion in  arrest. —  Such  defects  as  are  cured  by  the  verdict  can- 
not be  reached  by  a  motion  in  arrest  of  judgment.3 

§89'-.  Construction  of  pleadings  under  this  rule. —  What- 
ever may  be  the  rule  as  to  the  construction  of  pleadings  when 
the  attention  of  the  court  is  called  to  them  before  the  trial,  they 
will  certainly  not  be  construed  most  strongly  against  the  pleader 
if  they  are  not  attacked  until  after  the  verdict.4  For  in  such 
case  a  plea  to  the  merits  waives  the  objection.5  Thus,  an  objec- 
tion that  the  petition  contains  redundant  and  immaterial  matter 
comes  too  late  after  the  verdict.6 

§  893,  Further  application  of  the  doctrine. —  The  doctrine 
of  aider  by  verdict  applies  to  cases  where  that  which  ought  to 
be  explicitly  stated  is  not  so  stated,  but  may  be  gathered  from 
other  allegations  contained  in  the  pleading,7  the  rule  being  that 
if  the  facts  requisite  to  constitute  a  cause  of  action  are  neces- 
sarily inferable  from  the  pleading  taken  in  its  entirety,  though 
informally  stated,  the  petition  will  be  held  good  after  verdict.8 
Mere  imperfections  or  indefmiteness  in  the  statement  are  not 
open  to  review  unless  attacked  before  the  verdict  is  rendered.9 
The  ground  of  this  rule,  that,  where  a  material  allegation  is  not 
expressly  averred,  but  is  necessarily  implied  from  the  words 
stated,  the  defect  is  cured  by  the  verdict,  is  that  it  will  be  pre- 
sumed that  plaintiff  proved  the  fact  thus  imperfectly  alleged  and 
the  existence  of  which  was  necessary  to  a  recovery  by  him.10 

1  Krum  v.  Jones,  25  App.  71.    See       7  Peck  v.  Bridwell,  10  App.  524. 

§  881,  ante,  8  State  ex  rel.  v.  Pace,  34  App.  458; 

2  State  v.  Sullivan  County  Court,  51     Edmonson  v.  Phillips,  73  Mo.  57;  Grove 
Mo.  522,  529.  v.  Kansas  City,  75  Mo.  672;  State  ex 

3Carrington  v.  Hancock,   23  App.  rel.  v.  Williams,  77  Mo.  463;  Young  v. 

299.  Powell,  13  App.  593;  Buck  v.  People's 

*  Oglesby  v.  Ma  Pac.  R  Co.,  150  Mo.  Ry.  Co.,  46  App.  555. 

137.  9  Green  v.  Supreme  Lodge,  79  App. 

&  Malone  v.  Fidelity  &  Casualty  Co.,  179. 

71  App.  1.  1"  Bowie  v.  Kansas  City,  51  Mo.  454; 

6  Bradley  v.  Chicago,  M.  &  St.  P.  R.  Hamlin  v.   Carruthers,  19  App.  567; 

Co.,  138  Mo.  293.  Enterprise  Coal  Co.  v.  Liberty  Brew- 


§§  894,  895.]   DEFECTS  CURED  BY  VERDICT  OR  JUDGMENT.      461 

The  rule,  however,  applies  only  to  defective  allegations  of  a  ma- 
terial fact ;  and  an  entire  failure  to  set  out  the  constitutive,  in- 
dispensable elements  of  a  cause  of  action  are  not  so  cured.1 
For  where  the  petition  totally  omits  to  state  a  cause  of  action, 
there  is  no  room  for  the  presumption  that  plaintiff  proved  the 
fact.2  Where  two  distinct  grounds  of  liability  are  set  forth  in  a 
petition  in  one  count,  and  the  allegations  are  totally  insufficient 
to  state  a  cause  of  action  on  the  one  ground,  and  the  allegations 
as  to  the  other  ground  are  defective,  a  verdict  will  not  cure  the 
defect.3  Where  the  action  was  brought  for  a  balance  claimed  to 
be  due  plaintiff  for  his  commissions  upon  a  purchase  of  hogs  for 
the  defendant,  and  for  moneys  expended  and  expenses  incurred 
in  connection  therewith,  there  was  a  verdict  for  plaintiff  for  five 
hundred  dollars.  It  was  evident  from  the  record  that  all  the 
issues  were  found  for  defendant  except  in  regard  to  a  five  hun- 
dred dollar  draft,  for  which  plaintiff  claimed  credit.  There  were 
no  facts  alleged  in  the  petition  showing  defendant's  liability  on 
account  of  the  draft,  and  the  evidence  did  not  disclose  such  lia- 
bility. It  was  held  that  the  petition  was  so  fatally  defective 
that  it  was  not  cured  by  verdict.4 

§  894.  "Where  the  petition  does  not  fail  altogether  to  state  a 
cause  of  action,  but  it  is  only  formally  defective,  the  defect  can- 
not be  reached  by  interposing  at  the  trial  an  objection  to  the  in- 
troduction of  any  evidence.5  Where  the  plaintiff  sues  for  work 
done  and  cash  furnished,  but  omits  to  say  "  by  the  plaintiff,"  the 
defect  is  cured  by  verdict.6  So  is  the  failure  to  formally  allege 
in  the  body  of  the  petition  the  copartnership  of  plaintiffs,  if  it  is 
set  out  in  the  caption.7 

§  895.  The  courts  sometimes  go  to  a  great  length  to  support 
a  verdict  and  judgment,  even  though  the  pleading  is  exceedingly 
defective.  A  striking  illustration  of  this  is  found  in  the  case  of 
Ilirsch  v.  United  States  Grand  Lodge*  in  which  the  court  uses 
the  following  language:  "Instead  of  stating  the  substantive 
facts  that  the  plaintiff  made  a  contract  with  the  defendant  au- 

ing  Co.,  20  App.    16;  Hurst  v.   Ash        SByington  v.  St  Louis  R.  Co.,  147 

Grove,  96  Mo.  168;  People's  Bank  v.  Mo.  673. 

Scalzo,  127  Mo.  164.  *  Falls  v.  Daily,  74  Mo.  74. 

1  Shaver  v.  Mercantile  Ins.  Co.,  79  5  Hurst  v.  Ash  Grove,  96  Mo.  168; 
App.  420.  Clark  v.  Fairley,  24  App.  429. 

2  Berthold  v.  Clay  Fire  Ins.  Co.,  2        6  Saulsbury  v.  Alexander,  50  Mo.  142. 
App.  311.     See  also  Summers  v.  Home        7  Richardson  v.  Farmer.  36  Mo.  35. 
Ins.  Co.,  53  App.  520.  8  56  App.  101. 


162  DEFECTS   CUBED   BY    VERDICT  OR  JUDGMENT.      [§§  890-898. 

thorized  by  its  laws,  and  what  such  laws  were  on  the  contro- 
verted question,  it  states  that  the  defendant  induced  the  plaint- 
ill'  to  enter  into  a  contract  by  representing-  what  its  laws  were  on 
the  controverted  point.  It  states  that  the  defendant  refused  to 
pay  the  claim  because  its  laws  prohibited  such  payment,  but 
neither  admits  nor  denies  the  existence  of  such  prohibitory  law. 
It  is  evident  that  the  pleader  did  not  desire  on  the  one  hand  to 
admit  the  validity  of  the  adoption  of  the  amendment  of  1888,  nor 
did  he  on  the  other  hand  intend  to  forego  the  benefit  of  a  posi- 
tive estoppel,  in  case  it  should  be  determined  that  such  law  was 
validly  adopted.  As  the  petition  does,  however,  at  least  by  in- 
tendment, show  a  contract  between  the  plaintiff  and  defendant, 
and  a  right  of  recovery  thereon  independent  of  any  question  of 
estoppel,  we  think  a  general  demurrer  thereto  was  properly 
overruled.  To  reach  the  defects  of  the  petition  a  motion  to  make 
it  more  definite  and  certain  was  the  proper  remedy."     (p.  103.) 

§  890.  There  must  be  evidence  as  to  the  omitted  averment  — 
A  party  cannot  invoke  the  rule  of  aider  by  verdict  if  he  offers 
no  evidence  whatever  touching  the  point  as  to  which  the  rule  is 
invoked.1 

§  897.  The  doctrine  applies  to  a  finding  by  the  court. —  The 
rules  above  stated  apply  as  well  to  a  trial  and  finding  by  the 
court  as  to  a  verdict  by  the  jury.2 

§  898.  It  applies  both  to  answers  and  replies. —  That  a  ver- 
dict in  favor  of  defendant  may  also  cure  an  imperfect  answer  is 
held  in  the  following  cases.  It  is  settled  that  a  plea  of  accord 
and  satisfaction  must  contain  an  allegation  that  the  thing  ten- 
dered by  the  debtor  was  received  by  the  creditor  in  full  satisfac- 
tion of  the  debt;  yet  if  this  allegation  is  omitted,  but  the  ver- 
dict is  in  favor  of  the  defendant,  the  defect  is  cured.3  So,  in  an 
action  of  slander,  plaintiff  cannot  object  after  the  trial  that  a 
plea  of  justification  is  insufficient,  since,  however  insufficient  it 
may  be,  defendant  will  be  entitled  to  a  verdict  if  it  is  proved; 
the  defect,  therefore,  is  cured  by  the  verdict.4  Though  a  motion 
might  properly  lie  to  make  an  answer  definite  and  certain,  yet 
if  the  meaning  of  the  pleader  is  unmistakable,  it  will  be  sufficient 
after  verdict.5    And  it  is  too  late  after  verdict  to  object  that  the 

1  Summers  v.  Home  Ins.  Co.,  53  App.  3  Wilkerson  v.  Bruce,  37  App.  156. 
521.  4  Evans  v.  Franklin,  26  Mo.  252. 

2  Bassett  v.  Western  Union  TeL  Co.,  5Hay  v.  Short,  49  Mo.  139. 
48  App.  566. 


§  899.]  DEFECTS    CURED    BY   VERDICT    OR   JUDGMENT.  463 

answer  sets  up  inconsistent  defenses.1  It  has  also  been  held  that 
a  defective  replication  may  be  cured  by  verdict.2 

§  899.  Irregularities  cured.— If  the  petition  is  irregular  in 
setting  out  the  same  matter  in  three  separate  counts,  but  defend- 
ant fails  to  move  that  plaintiff  be  confined  to  one  count,  such 
irregularity  is  cured  by  verdict.3  A  variance  between  the  dec- 
laration and  the  instrument  sued  on  in  the  date  of  the  instru- 
ment is  cured  by  verdict.4  Though  a  plea  in  abatement  in  an 
attachment  proceeding  may  be  defective,  yet  if  the  plaintiff  in 
the  attachment  goes  to  trial  on  it,  and  treats  it  as  putting  in 
issue  the  truth  of  the  facts  alleged  in  the  attachment  affidavit,  it 
will  be  held  good  after  verdict.5  It  is  too  late  after  verdict  for 
defendant  to  raise  the  objection  that  the  reply  was  not  filed 
within  the  prescribed  time.6 

The  question  whether  an  imperfect  petition  is  cured  by  a  ver- 
dict in  favor  of  plaintiff  has  come  before  our  courts  in  a  variety 
of  cases,  and  the  decisions  in  these  cases  are  useful  as  guides  in 
determining  whether  any  specific  case  comes  within  the  rule. 
A  collection  of  these  cases  will  be  found  in  the  next  chapter. 

i  Schaefer  v.  Causey,  8  App  142.  *  Warne  v.  Anderson,  7  Mo.  46. 

2  Davis  v.  Cooper,  6  Mo.  148.  »  Bailey  v.  O'Bannon,  28  App.  39. 

3  Price  v.  Whiteley,  50  Mo.  439.  6  Magellan  v.  Orme,  7  Mo.  4. 


CHAPTER  XXXIX. 


SPECIFIC  CASES  IN  WHICH  THE  DEFECTS  HAVE  BEEN  HELD  TO 
BE  CURED  BY  THE  VERDICT  OR  JUDGMENT. 


§  900.  In  miscellaneous  proceedings. 

901.  Clerical  mistakes. 

903.  Question  of  license. 

903.  In  suit  to  construe  a  will 

904.  Pleading  notice. 

905.  Stating  value. 

906.  Stating  ownership. 

907.  General  charge  of  negligence 

or  fraud. 

908.  Action  for  assault. 

909.  In  assumpsit 

910.  Action  on  a  bill  or  note. 

911.  On  bond. 

912.  Against  carriers. 

913.  On  contract. 

914.  On  contract  of  marriage. 

915.  Action  for  contribution. 

916.  Action  against  county. 

917.  Action  for  breach  of  covenant. 

918.  Action  for  fraud. 


919.  Actions  on  insurance  policies. 

921.  Same  —  Averment    of    owner- 

ship. 

922.  Same  —  Averments  showing 

that  amount  is  due. 

923.  Same  —  Against  benefit  associ- 

ation. 
924  Action    for   malicious  attach- 
ment. 

925.  Action  on  mechanic's  lien. 

926.  Foreclosing  mortgage. 

927.  Actions  by  municipalities. 

928.  Actions  based  on  negligence. 

929.  Actions  against  railroad  com- 

panies. 

930.  Replevin  suits. 

931.  Actions  for  slander. 

932.  Suit  for  specific  performance. 

933.  Actions  for  delinquent  taxes. 


§  900.  In  miscellaneous  proceedings. —  In  an  action  for  con- 
version the  petition  will  not  be  adjudged  insufficient  after  verdict 
because  it  fails  to  allege  that  the  conversion  was  wrongful.1  And 
if  the  petition  fails  to  set  out  the  value  of  the  articles  converted, 
but  refers  to  an  exhibit  for  their  description  and  value,  the  defect 
is  cured  by  verdict.2  Where  there  are  two  counts  in  the  petition, 
and  plaintiff  sues  in  one  in  a  representative  capacity,  and  in  the 
other  in  his  individual  capacity,  it  was  held  under  the  former 
practice  that  the  misjoinder  was  cured  by  verdict.3  Whether  in 
view  of  the  lano-uao-e  of  the  seventh  subdivision  of  section  593,4 
taken  in  connection  with  the  last  clause  of  that  section,  it  would  be 
so  held  under  the  present  practice,  is  doubtful.5  There  is  no  doubt, 


i  McDonald  v.  Mangold,  61  App.  291. 

2  Case  v.  Fogg,  46  Mo.  44 

3  Yates  v.  Kimmel,  5  Mo.  87. 

4  Rev.  Stat  1899. 


8  The  seventh  subdivision  makes  as 
a  class  by  itself  "  claims  by  or  against 
a  party  in  some  representative  or  fidu- 
ciary capacity,  by  virtue  of  a  contract 


§§  901-904.]  specific  cases.  465 

however,  that  if  causes  of  the  same  class  are  blended  in  the  same 
count  of  the  petition,  and  defendant  neglects  to  take  advantage 
of  the  irregularity  by  a  motion  to  compel  plaintiff  to  elect,  the 
defect  is  cured  by  verdict.1  Even  if  the  petition  is  defective  by 
reason  of  the  fact  that  it  fails  to  use  words  in  stating  amounts  of 
money,  but  instead  of  words  employs  arabic  figures  preceded 
by  the  dollar  sign,  and  with  the  last  two  figures  cut  off  by  a  dot 
to  indicate  cents,  such  a  defect  is  nevertheless  cured  by  verdict.2 

§  901.  Clerical  mistakes. —  In  an  action  by  an  employee  to 
recover  for  injuries  resulting  from  unsafe  appliances  furnished 
by  the  employer,  the  petition  alleged  that  the  said  defendant, 
wholly  disregarding  its  duty  to  this  "  defendant,"  did  furnish,  etc. ; 
it  being  apparent  that  the  second  use  of  the  word  "  defendant " 
was  a  clerical  mistake,  the  defect  is  cured  by  the  verdict.3 

§  902.  Question  of  license. —  Where  the  action  was  to  recover 
attorney's  fees,  and  the  petition  failed  to  directly  allege  that 
plaintiff  had  obtained  a  license  to  practice  law,  the  defect  could 
not  be  taken  advantage  of  after  the  verdict,  especially  where  the 
allegation  is  inferentially  made  that  plaintiff  had  been  duly  ad- 
mitted to  the  bar.4 

§  903.  In  suit  to  construe  a  will, —  In  a  suit  to  construe  a 
will,  if  the  petition  fails  to  set  out  in  hcec  verba  the  will  which  is 
to  be  construed,  or  the  terms  and  provisions  of  the  will  as  a 
whole,  but  does  set  out  substantially  that  part  of  the  will  the 
construction  of  which  is  desired,  and  so  clearly  states  that  part 
as  to  enable  the  court  to  ascertain  its  purport  and  meaning,  the 
petition  will  be  held  good  after  judgment,  as  the  presumption 
will  be  indulged  that  this  is  the  only  clause  bearing  on  the  issue.5 

§  904.  Pleading  notice. —  In  a  proceeding  to  foreclose  a  mort- 
gage which  defectively  described  the  mortgaged  land,  the  peti- 
tion charged  that  the  defendant,  who  had  purchased  by  mesne 
conveyances  the  mortgaged  property,  had  notice  of  the  mistake 
in  the  mortgage,  but  it  omitted  to  allege  that  the  defendant's 
immediate  vendor  had  such  notice;  yet  it  was  held  that,  notwith- 
standing this  defect,  the  judgment  would  not  be  disturbed.6    In  an 

or  by  operation  of  law."    The    last  2Fulenwider  v.  Fulenwider,  53  Mo. 

clause  of  the  section  provides  that  the  439. 

causes  of  action  which  are  united  must  As  to  omission  to  allege  incorpora- 

allbelongto  one  of  the  specified  classes,  tion,  see  §  927,  post. 

i  Brown  v.  Kansas  City,  St.  J.  &  C.  3  Johnson  v.  Mo. PacR Co.,  96  Mo. 340. 

B.  R.  Co.,  20  A  pp.  427;  Welsh  v.  Stew-  *  Kersey  v.  Garton,  77  Mo.  615. 

art,  31  App.  376.  5  Graham  v.  Allison,  24  App.  516. 

Mo.  Code  Pi —  30  « Knox  County  v.  Brown,  103  Mo.  223. 


t66  DEFECTS   CURED   BY   VERDICT.  [§§  905,  90G. 

act  ion  against  a  municipal  corporation  for  damages  arising  out  of 
an  injury  incurred  while  walking  on  the  side  walk  of  one  of  the  prin- 
cipal streets  of  the  city,  the  charge  being  that  an  opening  in  the 
sidewalk  was  carelessly  and  negligently  left  open  and  unguarded 
by  the  city,  the  avermentis  sufficiently  implied  that  defend  ant  was 
bound  to  keep  the  sidewalk  in  repair  and  that  it  had  notice  of 
the  dangerous  condition  of  the  same,  so  that  the  want  of  such  a 
specific  averment  was  cured  by  verdict.1  So,  too,  in  an  action 
against  a  city  for  personal  injuries  caused  by  an  obstruction  in 
a  street,  the  petition  alleged  that  defendant  failed  and  neglected 
to  keep  the  street  in  a  safe  and  suitable  condition  for  the  use  of 
the  public,  and  unlawfully  and  negligently  suffered  the  street  to 
be  obstructed.  This  was  held  to  state  facts  from  which,  it  might 
be  inferred  that  defendant  had  notice  of  the  dangerous  condition 
of  the  street,  and  though  the  petition  is  defective  it  was  held 
good  after  verdict.2 

§  905.  Stating  value. —  It  is  doubtful  under  all  the  authorities 
whether  the  stating  of  the  value  in  ordinary  actions  at  law  is  a 
material  averment,  but,  at  all  events,  a  failure  in  an  action 
against  a  sheriff  for  an  unlawful  levy  and  sale  to  state  in  the 
petition  the  value  of  the  property  taken,  if  a  defect  at  all,  is  one 
of  such  a  formal  kind  as  to  be  cured  by  the  verdict.3  But  in  ac- 
tions on  fire  insurance  policies  the  statement  of  the  value  of  the 
property  destroyed  is  essential,  and  the  failure  to  allege  the  value 
in  express  terms,  or  in  terms  from  wrhich  the  value  can  be  clearly 
inferred,  is  a  fatal  defect.4 

§  906.  Stating  ownership. — "Where  in  an  action  to  enforce  a 
mechanic's  lien  it  was  alleged  that  defendant  and  a  third  person 
are  and  were  the  owners  of  the  property,  and  that  defendant 
contracted  with  the  plaintiffs  on  behalf  of  himself  and  his  co- 
owner,  this  amounted  by  necessary  intendment  to' an  allegation 
of  ownership  in  the  defendant  at  the  date  of  the  contract.5  Since 
in  an  action  on  a  fire  insurance  policy  the  petition  must  state  the 
ownership  of  the  insured  property  by  plaintiff  at  the  time  of  the 
fire,  an  averment  that  plaintiff  owned  the  business  conducted  in 
the  building  containing  the  property  is  not  sufficient,  and  the 
want  of  the  necessary  allegation  is  not  cured  by  verdict.6 

i  Bowie  v.  Kansas  City,  51  Mo.  454  4  Story  v.  Amer.  Cent.  Ins.  Co.,  61 

-'  Hurst  v.   Ash  Grove,  96  Mo.  168.  App.  534.     See  §  919,  post. 

For  rule  as  to  notice  in  mechanics'  5  Van  Riper  v.  Morton,  61  App.  440. 

lien  cases,  see  §  925,  post.  6  Story  v.  Amer.  Cent  Ins.  Co.,  61 

3  State  ex  rel.  v.  Beamer,  73  Mo.  37.  App.  534. 

See  also  §  925,  post,  n.  3. 


§§  907-912.]  specific  cases.  467 

§907.  General  charge  of  negligence  or  fraud. —  A  general 
allegation  of  negligence  is  good  after  verdict.1  And  a  general 
plea  of  contributory  negligence  is  good  after  verdict,  even  though. 
it  was  shown  that  defendant  was  negligent.2  A  pleading  which 
is  defective  in  not  alleging  specific  acts  of  fraud  is  sufficient  after 
a  verdict  or  a  finding  of  fraud.3 

§  908.  Action  for  assault. —  A  petition  in  an  action  for  an  as- 
sault and  battery,  which  does  not  charge  that  the  assault  was 
wrongful,  but  does  charge  that  it  was  with  force  and  arms,  is 
good  after  verdict.4 

§  909.  In  assumpsit. —  It  is  held  by  our  courts,  following  the 
rule  of  the  common  law,  that  in  actions  of  assumpsit  the  petition 
must  allege  a  promise ;  but  the  omission  of  this  allegation  is 
cured  by  verdict.5 

§  910.  On  a  bill  or  note. —  The  rule  which  obtains  in  actions 
of  assumpsit,  that  the  failure  by  plaintiff  to  allege  a  promise  is 
cured  by  verdict,  applies  also  to  actions  on  bills  of  exchange  or 
promissory  notes.  Thus,  if  it  is  not  alleged  that  the  defendant 
promised  to  pay,  but  only  that  he  put  his  name  upon  the  back  of 
the  note  before  delivery,  this  is  good  after  verdict,  especially 
where  it  appears  from  the  averments  of  the  answer  that  the  de- 
fendant knew  he  was  charged  as  joint  maker.6  An  allegation 
that  payment  was  refused  charges  by  implication  that  a  demand 
of  payment  was  made;  and  an  allegation  that  a  note  was  pro- 
tested and  due  notice  was  given  involves  an  allegation  that  no- 
tice of  non-payment  was  given.7 

§  911.  On  bond. —  Where  in  an  action  upon  an  attachment 
bond  there  is  no  allegation  that  the  state  sues,  but  the  petition 
sets  forth  by  sufficient  averments  the  title  of  the  person  for  whose 
benefit  the  bond  was  made  and  who  is  the  real  party  in  interest, 
and  all  the  facts  entitling  such  person  to  recover,  the  petition  is 
good  after  verdict.8 

§  912.  Against  carrier. —  If  the  petition  contains  facts  suffi- 
cient to  fix  the  common-law  liability  of  the  carrier,  it  is  good 
after   verdict.9     Thus   an   allegation   of  a   contract  to   carry, 

1  Daugherty  v.  Mo.  Pac.  R.  Co.,  9  s  Cape  Girardeau  &  State  Line  R  Co. 
App  478;  affirmed,  81  Mo.  325;  Lach-  v.  Kimniel,  58  Mo.  83.  See  in  this  Con- 
ner v.  Adams  Exp.  Co.,  72  App.  13.  nection  §§  343-345,  ante. 

*  Lien  v.  Chicago,  M.  &  St.  P.  R  Co.,  « Grelle  v.  Loxen,  7  App.  97. 

79  App.  475.  7Shaler  v.  Van  Wormer,  33  Mo.  386. 

3  Wilcoxson  v.   Darr,  139  Mo.  660.        8  State  to  use  v.  Webster,  53  Mo.  135. 

See  also  §§  918  and  928,  post.  9  Austin  v.    St.   Louis  &  St.  Paul 

*  McKee  v.  Calvert,  80  Mo.  34a  Packet  Co.,  15  App  197. 


468  DEFECTS    CUBED   BY    VEEDICT.  [§§  913-91G. 

coupled  with  an  averment  that  defendant  is  a  railroad  corpora- 
tion, is  su indent.1  If  the  action  is  one  to  recover  for  injuries,  an 
averment  that  the  sudden  starting  of  the  car  while  plaintiff  was 
in  the  act  of  alighting  occurred  through  the  negligence  of  de- 
fendant's servants  carries  the  implication  that  the  conductor 
saw  plaintiff,  or  would  have  seen  her  if  he  had  been  attending 
to  his  business,  and  the  petition  is  good  after  verdict.2 

§  913.  Action  on  contract. —  The  omission  to  set  out  the  facts 
which  constitute  the  consideration,  being  a  defect  which  might 
have  been  reached  by  demurrer,  is  cured  by  the  verdict.3  So, 
too,  a  defective  statement  of  the  performance  of  the  contract  by 
the  plaintiff  is  cured  by  verdict.4 

§  Oil.  On  contract  of  marriage. —  Where  the  action  is  for  a 
breach  of  a  promise  of  marriage,  and  the  petition  alleged  that 
at  the  request  of  defendant  the  plaintiff  had  promised  to  marry 
her,  and  that  defendant,  not  regarding  his  said  promise,  had  mar- 
ried another,  but  it  did  not  aver  a  promise  of  defendant  to  marry 
plaintiff,  the  petition  was  nevertheless  good  after  verdict,  since 
the  words  "  the  defendant,  not  regarding  his  said  promise,"  by 
implication  alleged  a  promise  by  defendant  to  marry  the  plaintiff. s 

§  915.  Action  for  contribution. —  Where  an  action  was 
brought  by  one  surety  against  his  co-surety  to  compel  contribu- 
tion, an  averment  in  the  petition  that  plaintiff  had  compromised, 
settled  and  fully  discharged  the  debt,  without  stating  the  specific 
amount  which  he  had  paid,  was  held  good  after  verdict,  though 
the  facts  were  not  stated  with  such  particularity  as  they  should 
have  been.6  And  where  the  parties  were  co-sureties  on  a  guard- 
ian's bond,  and  plaintiff  had  paid  the  judgment  rendered  in  an 
action  on  such  bond,  a  failure  to  state  in  the  petition  that  the 
original  suit  on  the  guardian's  bond  was  brought  in  the  name 
of  the  state  to  the  use  of  the  beneficiaries  will  not  vitiate  the 
judgment,  since  such  an  error  is  cured  by  verdict.7 

§  916.  Action  against  county. —  If  in  an  action  on  a  county 
warrant  the  petition  fails  to  state  that  there  were  funds  in  the 

1  Kain  v.  Kansas  City,  St.  J.  &  C.  contract  was  held  good  after  a  decree 
B.  R  Co.,  29  App.  53.  will  be  found  in  §  933,  post. 

2  Cobb  v.  Lindell  R.  Co.,  149  Mo.  135.  *  Eoper  v.  Clay,  18  Mo.  383.  A  peti- 
3Kercheval  v.  King,  44  Ma  401.  tion  which  was  held  good  after  ver- 
4  O'Conner  v.  Standard  Theater  Co.,     diet  will  be  found  in  Davis  v.  Slagle, 

17  Mo.  675.     A  case  where  a  petition    27  Mo.  600. 

in  a  suit  for  specific  performance  of  a        6  Kincaid  v.  Yates,  63  Mo.  45. 

7  Haygood  v.  McKoon,  49  Mo.  77. 


§§  917-919.]  specific  cases.  4:69 

treasury  out  of  which  the  warrant  might  have  been  paid,  and 
that  the  treasurer  refused  to  pay  such  warrant  out  of  those 
funds,  the  defect  is  cured  by  verdict,  and  the  omission  will  be 
supplied  by  the  court.1 

§  917.  Action  for  breach  of  covenant. —  In  an  action  upon 
the  covenants  of  a  deed,  the  petition  alleged  that  the  plaintiff's 
e victors  "  by  their  paramount  title  in  fee  simple  "  recovered  judg- 
ment against  the  plaintiff.  It  appearing  on  the  trial  that  at  the 
time  the  deed  was  made  the  adverse  title  was  paramount  to  that 
derived  from  the  covenantor,  this  allegation  was  held  to  be  good 
after  the  verdict.2 

§  918.  For  fraud. —  In  an  action  for  deceit  a  petition  which 
states  that  the  representations  were  made  by  the  defendant,  and 
that  when  made  they  were  known  by  him  to  be  false,  fraudulent, 
deceitful  and  untrue,  states  an  intent  to  deceive  with  such  cer- 
tainty as  to  make  it  good  after  verdict.3  Though  an  answer 
pleading  fraud  may  be  defective  in  not  alleging  the  specific 
acts  constituting  the  fraud,  yet  it  may  be  sufficient  to  support  a 
finding  of  fraud,  where  the  objection  was  not  made  until  the 
motion  in  arrest,  and  the  adverse  party  was  not  misled.4 

§919.  Actions  on  insurance  policies. —  "Where  in  an  action 
on  a  fire  insurance  policy  the  petition  fails  to  state  the  amount 
of  the  premium  paid,  this  is  at  most  an  imperfection  which  is 
cured  by  verdict.5  If  the  petition  fails  to  allege,  either  directly 
or  inferentially,  the  amount  of  the  insurance,  or  that  plaintiff  was 
insured  in  any  amount,  or  that  he  was  to  be  reimbursed  in  money 
or  other  things,  it  is  fatally  defective,  even  after  verdict.6  The 
value  of  the  property  insured  is  a  constitutive  fact,  which  must 
be  alleged  and  proven ;  and  the  doctrine  of  aider  by  verdict  can- 
not be  invoked  to  supply  the  lack  of  such  an  averment.7  The 
allegation  of  a  petition  was  that  defendant  insured  plaintiff  to 
the  amount  of  §1,200  on  certain  property  described,  and  that  the 
property  was  totally  destroyed  by  fire.  These  averments  of  value 
and  loss  were  held  sufficient  after  verdict.8 

1  Howell  v.  Reynolds  County,  51  Mo.  7  Coleman  v.  Phoenix  Ins.  Co.,  69 
154  App.  566;   Sappington  v.  St.   Joseph 

2  Collins  v.  Baker,  6  App.  588.  Mut.  F.  Ins.  Co.,  72  App.  74;  Wright 

3  Rannells  v.  Hewitt,  10  App.  593.  v.  Bankers'  Mut.  F.  Ins.  Co.,  73  App. 
4Wilcoxson  v.  Darr,  139  Mo.  660.  365;  Jones  v.  Philadelphia  Underwrit- 
5  Summers  v.  Home  Ins.  Co.,  56  App.    ers,  78  App.  296. 

653.  8  Jones  v.  St.  Joseph  F.  &  M.  Ins.  Co., 

6Wittkowsky  v.  Amer.  Ins.  Co.,  79    55  Mo.  342. 
App.  501. 


470  DEFECTS    CUKED   BY   TERDICT.  [§§  920,  921. 

§  920.  An  insurance  policy  was  assigned  by  the  insured  as  col- 
la  beraJ  security  to  secure  a  debt  less  than  the  amount  of  the  in- 
surance. In  an  action  upon  the  policy,  plaintiff  alleged  its  issue, 
etc.,  and  also  the  fact  of  such  pledge.  He  then  alleged  that  the 
defendant  had  paid  to  the  pledgee  the  amount  which  plaintiff 
owed  the  latter,  but  refused  to  pay  to  plaintiff  the  balance  due 
on  said  policy.  In  the  appellate  court  defendant  raised  the  ob- 
jection that  there  was  no  allegation  that  the  policy  had  been 
re-assigned  to  the  plaintiff,  or  that  the  assignee  had  fraudulently 
adjusted  the  loss  with  the  defendant.  But  it  was  held  that  the 
petition  by  necessary  implication  showed  that  only  a  part  of  the 
amount  due  on  the  policy  was  to  be  paid  to  the  pledgee,  and 
that  such  amount  only  had  been  paid,  and  that,  therefore,  by  nec- 
essary inference  the  balance  was  due  to  the  plaintiff,  and  that 
the  defect  in  the  petition  was  cured  by  verdict.1 

§  921.  Same  —  Averment  of  ownership. —  If  the  petition  fails 
to  allege  that  plaintiff  was  the  owner  of  the  property  insured, 
both  at  the  time  of  its  insurance  and  at  the  time  of  the  loss,  the 
defect  is  not  cured  by  verdict.2  Allegations  that  the  plaintiff 
owned  the  business  conducted  in  the  building  containing  the 
property,  and  that  he  was  damaged  in  a  stated  amount  by  the  de- 
struction of  the  property,  will  not  suffice,  these  not  being  the 
equivalent  by  necessary  intendment  of  the  requisite  averments.5 
But  where  plaintiff  alleges  that  the  insurance  was  taken  on  "  his  " 
stock  of  general  merchandise,  the  petition  is  sufficient  after  ver- 
dict, though  the  court  says  that  this  is  a  defective  averment  of 
ownership.4  Where  the  description  of  the  property  insured  con- 
tained in  the  petition  was  in  the  following  words:  "on  his  barn 
and  sheds  adjoining,"  and  it  is  accompanied  with  an  enumeration 
of  the  grain  in  the  barn  and  crib,  and  the  petition  sets  out  the 
amount  of  insurance  apportioned  to  each,  this  is  a  sufficient  alle- 
gation of  plaintiff's  ownership  to  support  the  verdict.5  If  the 
policy  is  a  valued  one,  and  the  language  of  the  petition  clearly 

1  Summers  v.  Home  Ins.  Co.,  56  App.  Co.,  77  App.  639;  Shaver  v.  Mercantile 
65a  Ins.  Co.,  79  App.  420.    The  intimation 

2  Story  v.  Amer.  Cent.  Ins.  Co.,  61  to  the  contrary  in  Clevinger  v.  North- 
App.  534;  Clevinger  v.  Northwestern  western  Ins.  Co.,  71  App.  73,  must  be 
Ins.  Co.,  71  App.  73;  Jones  v.  Phila-  deemed  to  be  overruled. 

delphia  Underwriters,  78  App.  296.  5  Bondurant  v.  German  Ins.  Co.,  73- 

3  Story  v.  Amer.  Cent  Ins.  Co.,  61     App.  477. 
App.  534. 

4Boulware   v.  Farmers'  Co-op.  Ins. 


§§  922-925.]  specific  cases.  471 

indicates  ownership,  or  the  allegation  is  one  from  which  owner- 
ship is  reasonably  inferable,  the  petition  will  be  held  good  after 
verdict.1  An  allegation  that  plaintiff  had  an  insurable  interest 
in  the  property  as  the  owner  thereof  is  at  least  an  inferential 
averment  of  ownership  and  is  sufficient  after  verdict.2 

§  922.  Same  —  Averments  showing  that  amount  is  due. — 
A  petition  is  fatally  defective  which  fails  to  state  that  the  insur- 
ance was  for  a  definite  period,  which  extends  beyond  the  date  of 
the  loss.3  So  is  a  petition  which  does  not  allege,  either  directly 
or  inferentially,  that  the  amount  of  the  policy  was  due  at  the 
time  of  the  institution  of  the  action.4  But  if  the  petition  alleges 
the  execution  and  delivery  of  the  policy,  the  description  and  sit- 
uation of  the  property,  the  payment  of  the  premium,  the  total 
destruction  by  fire  of  the  property  and  its  value,  the  notification 
and  proof  of  loss,  and  then  adds  that  plaintiff  had  duly  performed 
all  the  terms  and  conditions  of  the  policy  and  defendant  had  re- 
fused to  pay  the  loss,  though  the  same  had  been  demanded,  this 
clearly  implies  that  the  amount  of  the  policy  was  due  and  pay- 
able at  the  time  the  action  was  commenced.5 

§923.  Same  —  Against  benefit  association. —  Where  a  cer- 
tificate of  membership  in  a  benefit  association  had  been  surren- 
dered by  the  deceased,  and  from  the  time  of  the  surrender  he 
had  failed  to  pay  the  premiums,  and  the  petition  did  not  set  out 
any  excuse  for  such  failure,  and  did  not  aver  a  willingness  on  the 
part  of  the  plaintiff  to  pay  all  unpaid  premiums,  these  were  fatal 
defects,  which  a  verdict  would  not  cure.6 

§924.  Action  for  malicious  attachment. —  In  an  action  for 
malicious  attachment  it  is  essential  to  show  that  the  attachment 
proceedings  had  terminated  in  favor  of  the  defendant,  and  the 
want  of  such  an  averment  in  the  petition  is  not  cured  by  verdict.7 

§  925.  On  mechanic's  lien. —  Where  it  can  be  gathered  from 
the  petition  that  the  dwellings  against  which  the  lien  was  filed 
constituted  one  building  erected  under  one  contract,  though  there 

1  Jones  v.  Philadelphia  Underwrit-  73  App.  365;  Shaver  v.  Mercantile  Ins. 
ers,  78  App.  296;  Cagle  v.  Chillicothe  Co.,  79  App.  420.  The  same  ruling  is 
F.  Ins.  Co.,  78  App.  431.  made  in  an  action  on  a  promissory 

2  Jones  v.  Philadelphia  Underwrit-  note  in  Spears  v.  Bond,  79  Mo.  467. 
ers,  78  App.  296;  Cagle  v.   Insurance  5  Murphy  v.  North  British  Ins.  Co., 
Co.,  78  App.  431.    This  is  unquestion-  70  App.  78. 

ably  a  direct  averment  of  an  insurable  e  Wells  v.  Covenant  Mut.  Ben.  Ass'n, 

interest  in  plaintiff.  126  Mo.  630. 

3  Shaver  v.  Mercantile  Ins.  Co.,  79  '  Freymark  v.  McKinney  Bread  Co., 
App.  420.  53  App.  435. 

4  Wright  v.  Bankers'  Mut.  Ins.  Co., 


472  DEFECTS    CURED   BY   VERDICT.  [§§  92G.  927. 

is  no  explicit  statement  of  this  fact  in  the  petition,  the  petition 
will  be  held  sufficient  after  verdict.1  If  the  action  is  brought  by 
a  subcontractor,  and  the  petition  alleges  generally  that  one  de- 
fendant was  owner  and  the  other  the  original  contractor,  it  may 
fairly  be  assumed  that  the  original  contract  was  with  the  owner, 
and  if  the  petition  is  defective  in  this  regard  it  will  nevertheless 
sustain  a  verdict  for  the  plaintiff  and  establishing  the  lien.2  Any 
insufficiency  of  the  allegations  as  to  notice,  or  that  the  materials 
were  worth  the  prices  charged,  is  cured  by  verdict,  if  full  proof 
is  made  of  such  facts.3  But  where  the  petition  alleges  that  on  a 
certain  day  plaintiff  filed  a  "notice  of  lien  claimed  on  said  prem- 
ises for  the  indebtedness  aforesaid,  which  notice  was  duly  verified, 
and  specified  the  amount  of  the  claim  as  above  stated,  and  speci- 
fied the  defendant  S.  as  the  owner  of  said  premises,  which  were 
therein  fully  described,"  this  is  not  a  substantial  compliance  with 
the  statute,  and  the  defect  is  not  cured  by  verdict.4  Where  the 
petition  alleged  that  the  items  of  the  account  were  furnished  be- 
tween the  6th  and  17th  of  September,  on  which  last  day  the  ac- 
count accrued,  this  will  be  held,  after  verdict,  to  state  that  the 
last  item  was  furnished  on  the  17th  of  September.5  Where  the 
petition  stated  that  the  defendant  and  a  third  person  are  and 
were  the  owners  of  the  property,  and  that  the  defendant  con- 
tracted with  the  plaintiffs  on  the  part  of  himself  and  his  co-owner, 
this  by  necessary  intendment  amounted  to  an  allegation  of  own- 
ership in  the  defendant  at  the  date  of  the  contract.6 

§  926,  Foreclosing  mortgage. —  In  a  proceeding  to  foreclose 
a  mortgage  which  defectively  described  the  land,  the  petition 
charged  the  defendant,  who  was  a  subsequent  purchaser  from 
the  mortgagor,  with  notice  of  the  misdescription,  but  failed  to 
alleged  that  defendant's  immediate  vendor  had  such  knowledge, 
yet  it  was  held  that  the  petition  was  good  after  verdict.7 

§  927.  Actions  by  municipalities. —  In  an  action  by  a  mu- 
nicipal corporation  on  a  tax-bill,  a  failure  to  allege  that  the 
plaintiff  is  a  corporation  and  that  it  had  authorit}^  to  levy  taxes, 
or  a  failure  to  make  either  of  these  allegations,  renders  the  pe- 
tition fatally  defective,  and  the  defects  are  not  cured  by  verdict.8 

i  Peck  v.  BridweU,  10  App.  524,  7  Knox  County  v.  Brown,  103  Mo. 

2  Cole  v.  Barron,  8  App.  509.  223. 

'Gibson  v.  Nagel,  15  App.  597.  8 Clinton  v.  Williams,  53  Mo.  141. 

4  Fay  v.  Adams,  8  App.  566.  This  For  cases  involving  the  question  of 
case  is  not  reported  in  full.  a  proper  statement  of  notice  to  a  mu- 

5  Peck  v.  Bridwell,  10  App.  524  nicipal  corporation,  see  §  904,  ante. 

6  Van  Riper  v.  Morton,  61  App.  440. 


§§  928-931.]  specific  cases.  473 

§  928.  Actions  based  on  negligence. —  If,  in  an  action  based 
on  negligence,  the  petition  alleges  two  acts,  each  of  which  is 
charged  to  constitute  negligence,  if  one  of  such  acts  is  not  neg- 
ligence of  a  nature  such  as  would  make  the  defendant  legally 
liable,  yet,  if  defendant  waits  until  after  verdict  before  object- 
ing to  it,  his  objection  will  not  be  heard,  if  by  a  liberal  construc- 
tion of  the  petition  it  can  be  held  sufficient  to  sustain  the  verdict.1 

§  929.  Actions  against  railroad  companies. —  Where  the  ac- 
tion is  for  double  damages  for  killing  a  cow,  and  the  complaint 
alleges  that  the  cow  without  plaintiff's  fault  strayed  upon  defend- 
ant's track  at  a  point  where  it  ran  through  and  along  cultivated 
lands,  and  where  it  was  not  sufficiently  or  lawfully  fenced  and 
guarded  by  cattle-guards,  and  where  there  was  no  public  cross- 
ing, it  is  good  after  verdict,  though  it  is  not  expressly  alleged 
that  the  cow  got  upon  the  track  by  reason  of  the  failure  to  fence.2 
So, "if  the  complaint  alleges  the  killing  in  an  "  adjacent,"  instead 
of  an  "  adjoining,"  township,  the  error  is  cured  by  verdict.3  In 
an  action  brought  under  the  statute i  against  a  railroad  company 
for  setting  fire,  it  is  not  fatal  to  the  verdict  that  there  was  no 
attempt  to  prove  negligence  on  the  part  of  defendant,  even  though 
the  petition  alleges  it;  notwithstanding  such  allegation,  if  the 
averments  of  the  petition  are  sufficient  to  bring  the  case  within 
the  statute,  a  recovery  will  be  upheld.5 

§930.  Replevin  suits. —  The  omission  to  aver  directly  that 
the  property  claimed  is  in  the  possession  of  defendant  will  be 
cured  by  verdict,  if  the  petition  alleges  that  the  defendant  wrong- 
fully detains  the  propert}';  and  the  same  result  follows  if  the  an- 
swer confesses  that  fact,  though  only  by  implication.6 

§  931.  Actions  for  slander. —  Where  the  petition  alleges  that 
defendant  charged  plaintiff  with  swearing  falsely  in  a  proceed- 
ing before  a  justice  of  the  peace,  but  there  is  no  allegation  that 

1  Oglesby  v.  Mo.  Pac.  R  Co.,  150  Mo.  apply  to  a  petition  filed  in  a  court  of 
137.    That  a  petition  containing  only    record. 

a  general  charge  of  negligence  will  4  Rev.  Stat.  1899,  sec.  1111. 

be  sustained  after  verdict,  see  §  907,  5  Fields  v.  Wabash  R.  Co.,  80  App. 

ante.  603. 

2  Edwards  v.  Kansas  City,  St.  J.  &  «  Garth  v.  Caldwell,  72  Mo.  C22.  And 
C.  B.  R  Co.,  74  Mo.  117.  it  is  decided  in  the  same  case  that 

3  Harrison  v.  St.  Louis,  I.  M.  &  S.  R  even  if  it  were  necessary,  in  an  action 
Co.,  58  App.  463.  Both  the  foregoing  to  replevy  corn  in  the  stock,  to  allege 
cases  were  originally  brought  before  a  that  the  corn  had  matured,  yet  a  fail- 
justice,  but  I  cite  them  here  because  ure  to  make  such  averment  cannot  be 
I  think  the    rulings  would    equally  taken  advantage  of  after  verdict. 


474:  DEFECTS    CURED    BY   VERDICT.  [§§  932,  933. 

the  justice  had  jurisdiction  of  the  proceeding,  or  that  he  had 
power  to  administer  the  oath,  or  that  the  testimony  was  as  to  a 
material  matter,  the  petition  is  nevertheless  good  after  verdict.1 

§  t)3'2.  Suit  for  specific  performance. —  Where  the  suit  is  one 
for  a  specific  performance,  if  the  facts  are  specially  found  by  the 
court  or  by  the  jury,  and  such  special  findings  are  sufficient  to 
support  the  decree,  it  will  not  be  reversed  because  the  contract  is 
defectively  stated  in  the  petition.2 

§  933.  Actions  for  delinquent  taxes. —  In  an  action  by  a  mu- 
nicipal corporation  on  a  tax-bill,  a  failure  to  allege  that  the  plaint- 
iff is  a  corporation,  and  that  it  had  authority  to  levy  taxes,  or  a 
failure  to  make  either  of  these  allegations,  renders  the  petition 
fatally  defective,  and  it  is  not  cured  by  verdict.3 

i  Palmer  v.  Hunter,  8  Mo.  512;  Har-  For  cases  involving  the  question  of  a 

ris  v.  Woody,  9  Mo.  113.  proper  statement  of  notice  to  a  mu- 

2Despain  v.  Carter,  21  Mo.  331.  nicipal  corporation,  see  §  904,  ante. 
3  Clinton  v.  Williams,  53  Mo.  14L 


CHAPTER  XL. 


AMENDING  PLEADINGS. 


§  934.  The  allowance  of  amendments 
is  discretionary. 

935.  Rules  for  the  guidance  of  the 

court. 

936.  When  leave  to  amend  may  be 

refused. 

937.  Taking  leave  to  amend. 

938.  Guarding    rights    of    adverse 

party. 

939.  Successive  amendments. 

9-10.  What  will  support  an  amend- 
ment. 

941.  Where  the  cause  is  submitted 

on  an  agreed  statement. 

942.  Liberality  in  allowing  amend- 

ments. 

943.  In  order  to  save  the  bar  of  the 

statute  of  limitations. 


944  Same  —  Special  statute  of  lim- 
itation. 

945.  Not  allowed  for  purpose  of  cur- 

ing defective  process. 

946.  Party    may   be    compelled  to 

amend. 
947.-  Same  —  On    cause    being    re- 
manded. 

948.  Where  part  of  a  pleading  is 

stricken  out, 

949.  How  the  amendment  is  to  be 

made. 

950.  Same  —  By  interlineation. 

951.  Where  the  amendment  is  not 

actually  made. 

952.  The  number  of    amendments 

permitted. 


§  934.  The  allowance  of  amendments  is  discretionary.— 

The  allowance  of  amendments  is  uniformly  held  to  be  discre- 
tionary.1 Except  under  the  circumstances  mentioned  in  section 
985,  post,  they  are  not  allowed  as  a  matter  of  course.2  And  the 
trial  court  does  not  abuse  its  discretion  in  refusing  plaintiff  leave 
to  file  at  the  trial  an  amended  petition,  where  the  proposed 
amendment  is  immaterial.3  But  when  it  is  said  that  the  grant- 
ing of  an  amendment  is  discretionary  with  the  court,  it  does  not 
mean  that  that  discretion  is  not  subject  to  review;  for  the  ap- 
pellate court  will  always  look  to  see  whether  or  not  the  trial 
court  has  abused  its  discretion.4 

§  935.  Rules  for  the  guidance  of  the  court. —  Courts  should 
so  construe  the  sections  of  the  statute  authorizing  amendments 
as  to  discourage  negligence  and  deceit,  to  prevent  delay,  and  to 


1  Henderson  v.  Henderson,  54  Mo. 
534;  Ensworth  v.  Barton,  67  Mo.  622; 
Turner  v.  Thomas,  10  App.  338;  Brink- 
man  v.  Luhrs,  60  App.  512. 


2  Caldwell  v.  McKee,  8  Mo.  334. 

3  Steinhauser  v.  SprauL  114  Mo.  551. 

4  Joyce  v.  Growney,  154  Mo.  253. 


470  AMENDING    PLEADINGS.  [§  930. 

secure  the  parties  from  being  misled.1  If  it  is  apparent  that  the 
refusal  of  leave  to  amend  may  lead  to  the  perpetration  of  in- 
justice under  the  forms  of  law,  and  that  the  granting  of  the 
amendment  on  proper  terms  will  work  no  wrong,  the  amend- 
ment should  be  allowed ;  especially  so  where,  from  the  character 
of  the  original  pleading  and  of  the  proposed  amendment,  it  is 
apparent  that  the  party  intended  to  raise  by  his  first  pleading 
the  issue  which  he  tenders  by  the  amended  pleading.2  In  the  case 
cited  defendant  was  sued  individually  upon  a  note  signed  by  him 
as  president  of  a  corporation,  and  his  answer  was  a  general  de- 
nial. Under  the  general  denial  he  offered  to  show  that  the  note 
was  not  his  personal  obligation,  but  that  of  the  corporation  of 
which  he  was  president,  and  that  it  was  given  as  a  debt  of  the 
corporation  to  plaintiff,  which  evidence  was  properly  excluded 
under  the  general  denial,  but  it  was  held  that  defendant's  request 
to  amend  his  answer  so  as  to  set  up  the  above  defense  should 
have  been  granted.3  The  further  a  case  has  advanced,  the  more 
cautious  should  the  trial  court  become  in  allowing  an  amend- 
ment. When  the  amendment  is  not  asked  until  after  the  case- 
has  been  closed,  the  argument  heard,  and  the  cause  submitted, 
the  amendment  should  not  be  allowed  unless  it  is  manifest  that 
it  is  in  furtherance  of  justice.  And  at  that  stage  of  the  case, 
even  if  it  were  ever  allowable,  defendant  should  not  be  permitted 
to  file  a  second  amended  answer  in  which  he  changes  his  atti- 
tude.4 

§936.  When  leave  to  amend  maybe  refused. —  The  court 
should  refuse  leave  to  amend  if  the  party  does  not  state  in  what 
particular  he  wishes  to  amend.5  Thus  an  application  to  amend 
an  answer  so  as  to  set  up  fraud,  without  stating  the  specific 
amendment  which  defendant  wishes  to  make,  is  properly  refused." 
If  an  answer  is  stricken  out  for  insufficiency,  and  defendant 
thereupon  asks  for  time  to  file  an  amended  answer,  the  court  is 
not  bound  to  grant  the  request  if  it  would  operate  to  delay  jus- 
tice or  to  injure  the  plaintiff;  and  it  may  in  any  case  refuse  to 
grant  such  time  unless  defendant  states  the  character  of  the 
amendment  he  desires  to  make.7 

1Rev.   Stat.   1899,  sec.   676;    Weed  served  by  allowing  an  amendment  to 

Sewing  Machine  Co.  v.  Philbrick,  70  the  answer. 

Mo.  646.  4  Joyce  v.  Growney,  154  Mo.  253.  See 

*  Turner  v.  Thomas,  10  App.  338.  also  §  992,  post. 

3  Archer  v.  Merchants'  Ins.  Co.,  34  5  Taylor  v.  Blair,  14  Ma  437. 

Mo.  444,  also  presents  a  case  where  the  6  Allen  v.  Ranson,  44  Mo.  263. 

ends  of  justice  would  have  been  sub-  7  Cashman  v.  Anderson,  26  Ma  67; 

Robinson  v.  Lawson,  26  Mo.  69. 


§§  937-940.]  AMENDING    PLEADINGS.  477 

§  937.  Taking  leave  to  amend. —  Where  the  court  acts  upon 
an  amended  petition,  this  cures  any  irregularity  in  filing  it  with- 
out leave.1  The  taking  leave  to  tile  an  amended  pleading  is 
equivalent  to  a  withdrawal  of  the  former  pleading,  and  leaves 
the  case  as  if  no  such  pleading  had  been  filed.2 

§  938.  Guarding  rights  of  adverse  party. —  When  amend- 
ments are  allowed,  courts  are  scrupulous  in  guarding  the  rights 
of  the  other  party,  so  that  the  amendment  shall  not  work  a  preju- 
dice or  an  injustice.  It  has  been  well  said  that  "  where  one  party 
has  taken  a  false  step  and  seeks  to  retrace  it,  he  should  not  be 
allowed  to  do  so,  unless  his  adversary  who  has  been  guilty  of  a 
similar  laches  be  allowed  the  same  privilege." 3  Therefore,  where 
judgment  has  been  rendered  by  default  on  a  defective  petition, 
the  court  may  permit  the  petition  to  be  amended  after  judgment, 
but  an  opportunity  must  be  given  the  defendant  to  plead.4 

§  939.  Successive  amendments. —  It  is  proper  to  regard  every 
successive  amendment  as  an  amendment,  not  of  the  immediately 
preceding  pleading,  but  of  the  one  first  filed  by  the  party  mak- 
ing the  amendment.5 

§940.  What  will  support  an  amendment. —  Any  pleadings 
which  are  not  absolutely  void  are  amendable."  If  an  action  for 
damages  growing  out  of  death  by  the  wrongful  act  of  defendant 
is  brought  in  the  name  of  the  guardian  of  minor  children,  and 
the  names  of  the  minors  are  set  out  in  the  caption,  but  all  the 
allegations  are  made  in  the  singular  number,  and  the  conclusion 
alleges  that  "  he  "  is  damaged,  and  in  the  prayer  "  he  "  asks  judg- 
ment, yet  if  the  petition  refers  to  the  damage  act,  under  the  pro- 
visions of  which  and  the  circumstances  detailed  in  the  petition 
the  minors  alone  are  entitled  to  recover,  such  a  petition  states 
sufficient  matter  to  support  an  amendment  making  the  minors, 
the  substantial  parties.7     An  amendment  of  a  pleading  which 

1  McCollum  v.  Lougan,  29  Mo.  451.  was  held  that  plaintiff  should  not  be 

2  Roberts  v.  State  Ins.  Co.,  26  App.  permitted  to  amend  his  petition  with- 
92.  out  giving  the  landlord  leave  to  plead. 

3  Neidenberger  v.  Campbell,  11  Mo.  See  also  §  942,  post. 

359.     A  fortiori  must  the  adversary  5  Robertson  v.  Springfield  &  So.  R 

party  be  protected  if  he  has  not  been  Co.,  21  App.  633. 

guilty  of  any  laches.  B  Hardin  v.  Lee,  51  Mo.  241;  Rosen- 

4 Neidenberger  v.  Campbell,  11  Mo.  heim  v.  Hartsock,  90  Mo.  357;  Burnett 

359.    This  was  an  action  of  ejectment  v.  McCluey,  92  Mo.  230;  Avery  v.  Good, 

against  a  tenant,  and  judgment  was  114  Mo.  290. 

rendered  against  him  by  default.    The  7  Weber  v.  Hannibal,  83  Mo.  262. 
landlord  had  no  notice  of  the  suit.    It 


478  AMENDING    PLEADINGS.  [§§  941,  942. 

has  been  abandoned  or  stricken  out,  or  in  any  manner  ruled  out 
of  the  case,  is  not  permissible.1  Where  a  plaintiff  at  the  trial 
dismisses  one  of  several  counts  of  his  petition,  and  the  cause  is 
tried  as  if  the  issues  raised  in  that  count  were  abandoned,  he  can- 
not, after  the  cause  is  submittod,  and  under  a  permission  to 
amend  his  petition  in  order  to  make  it  conform  to  the  proofs,  so 
amend  it  as  to  again  raise  the  issue  made  in  the  dismissed  count.2 

§  941,  Where  the  cause  is  submitted  on  an  agreed  state- 
ment.—  Where  after  the  pleadings  are  made  up  the  parties  agree 
upon  a  statement  of  facts  and  submit  the  cause  on  such  agreed 
statement,  the  pleadings  may  be  amended  so  as  to  make  them 
conform  to  the  submission;  but  they  cannot  be  so  amended  as 
to  have  the  effect  of  changing  the  terms  of  the  submission  or  to 
meet  the  exigencies  of  the  trial.3 

§  942.  Liberality  in  allowing  amendments. —  Amendments 
are  favored,  and  they  should  be  liberally  allowed  in  furtherance 
of  justice.4  The  provisions  of  the  Code  relating  to  amendment 
of  pleadings  are  liberal,  and  the  courts  should  be  at  least  as  lib- 
eral as  the  statute.5  Especially  should  they  be  freely  allowed  if 
the  effect  of  allowing  them  is  not  prejudicial  to  the  adverse 
party.6  The  rule  is  peculiarly  applicable  where  the  effect  of  the 
amendment  is  to  save  the  cause  from  the  bar  of  the  statute  of 
limitations.7  But  amendments  should  only  be  allowed  on  such 
terms  as  will  prevent  prejudice  to  the  other  party.8  In  a  case 
where  the  court  has  jurisdiction  of  the  subject-matter,  of  the 
particular  proceeding,  and  of  the  defendant,  if  the  allegations  of 
the  petition,  instead  of  being  clear  and  direct,  are  either  defect- 
ive or  argumentative  and  ambiguous,  the  court  should  not  dis- 
miss the  case,  but  should  permit  the  plaintiff  to  amend  so  as  to 
conform  his  petition  to  well-established  rules.9     Cases  may  occur 

1  Renfro  v.  Price,  22  App.  403.  5  Carr  v.  Moss,  87  Mo.  447;  Collins  v. 

2  Cash  v.  Penix,  11  App.  597;  Renfro    Glass,  46  App.  297. 

v.  Price,  22  App.  403.    See  in  this  con-  6  Utley  v.  Tolfree,  77  Mo.  307.     See 

nection  Weber  v.  Squier,  51  App.  601.  §  938,  ante. 

3  Richards  v.  Hartford  Life  Ins.  Co.,  7  Lottman  v.  Barnett,  62  Mo.  159. 
68  App.  585.  See  next  section. 

4  Dallam  v.  Bowman,  16  Mo.  225;  8Ser  v.  Bobst,  9  Mo.  28;  Witte  Iron 
Chauvin  v.  Lownes,  23  Mo.  223;  Mar-  Works  v.  Holmes,  62  App  372.  See 
tin  v.  Martin,  27  Mo.  227;  Dozier  v.  g  1011,  post. 

Jerman,  30  Mo.  216;  House  v.  Duncan,        9  Price  v.  St.  Louis  Mut  L.  Ins.  Co., 
50  Mo.  453;  Goddard  v.  Williamson,  72    3  App.  262. 
Mo.  131 ;  Hixon  v.  Selders,  46  App.  275. 


§§  943-945.]  AMENDING    PLEADINGS.  479 

where  the  party  has  by  his  laches  deprived  himself  of  the  right 
to  amend.1 
§  943.  In  order  to  save  the  bar  of  the  statute  of  limitations. 

Amendments  are  allowed  for  the  express  purpose  of  saving  the 
cause  from  the  operation  of  the  statute  of  limitations,  and  courts 
should  be  liberal  in  allowing  them,  unless  the  cause  of  action  set 
up  in  the  amended  petition  is  totally  different  from  that  in  the 
original.2  Where  in  order  to  avoid  the  statute  of  limitations  the 
original  petition  alleged  that  a  payment  had  been  made  by 
the  defendant  within  ten  years,  but  the  evidence  showed  that 
the  payment  was  made  by  a  third  person,  who  was  a  co-maker 
of  the  note  with  the  defendant,  the  petition  may  be  amended  at 
the  trial  to  make  it  accord  with  the  fact,  as  such  amendment 
changes  neither  the  issues  nor  the  cause  of  action.3  If  .suit  is 
commenced  in  the  name  of  an  unincorporated  society,  an  amend- 
ment which  allows  certain  members  of  the  society  to  sue  in  their 
own  behalf  and  in  behalf  of  the  other  members,  and  to  be  sub- 
stituted as  parties  plaintiff  for  the  society,  not  only  does  not  in- 
troduce a  new  cause  of  action,  but  it  relates  back  to  the  com- 
mencement of  the  suit  so  as  to  prevent  the  bar  of  the  statute.4 
Where  an  action  for  the  death  of  a  minor  child  is  brought  by 
the  mother  alone,  she  having  been  divorced  from  her  husband, 
and  the  husband  being  unwilling  to  be  joined  as  plaintiff  was 
made  a  defendant,  plaintiff  may,  even  after  the  expiration  of  the 
time  limited  for  bringing  such  action,  file  an  amended  petition 
changing  the  husband  from  a  party  defendant  to  a  party  plaint- 
iff.5 

§  944.  Same  —  Special  statute  of  limitation. —  In  actions  on 
mechanics'  liens  the  power  of  amendment  of  pleadings  will  be 
liberally  exercised  to  prevent  the  operation  of  the  special  limita- 
tion governing  such  actions.6  But  in  an  action  against  a  steam- 
boat, plaintiff  cannot  amend  his  petition  so  as  to  introduce  a  new 
cause  of  action,  and  thereby  retain  his  lien  on  the  boat,  which  had 
expired  before  the  filing  of  the  amendment.7 

§  945.  Not  allowed  for  purpose  of  curing  defective  process. 
An  amendment  cannot  be  made  for  the  purpose  of  curing  de- 

« Stewart  v.  Glenn,  58  Mo.  481.  4  Lilly  v.  Tobbein,  103  Mo.  47?. 

That  courts  should  also  be  liberal  8  Buel  v.  St.  Louis  Transfer  Co.,  45 

as  to  the  time  when  the  amendment  Mo.  562. 

of  a  pleading  may  be  allowed  is  shown  6  Hannon  v.  Gibson,  14  App.  33. 

in  §  984,  post.  7  Gibbons  v.  Steamboat  Fannie  Bar- 

2  Lottman  v.  Barnett,  62  Mo.  159.  ker,  40  Mo.  253. 

3  Bennett  v.  McCanse,  65  Mo.  194. 


480  AMENDING    PLEADINGS.  [§§  940-948. 

fcctive  process,  or  to  give  that  court  jurisdiction  which  before 
i ho  amendment  had  none.  A  personal  action  against  a  single 
defendant  was  instituted  in  a  county  other  than  that  in  which 
d<  fendant  resided,  but  the  summons  was  served  on  the  defend- 
ant in  the  county  of  his  residence;  it  was  held  that  plaintiff 
could  not,  by  so  amending  his  petition  as  to  convert  the  personal 
action  into  a  real  one  affecting  land  situated  in  the  county  where 
the  action  was  instituted,  make  such  service  valid.1 

§  946.  Party  may  be  compelled  to  amend, —  When  the  alle- 
gations or  denials  of  a  pleading  are  so  indefinite  or  uncertain 
that  the  precise  nature  of  the  charge  or  denial  is  not  apparent, 
or  if  the  pleading  fails  in  any  other  respect  to  conform  to  the  re- 
quirements of  law,  the  court  may  require  such  pleading  to  be 
made  definite  and  certain,  and  to  otherwise  conform  to  the  law, 
by  amendment.2  The  subject  of  attacking  pleadings  on  account 
of  defects  apparent  on  their  face  is  treated  of  in  chapter  XXXI, 
and  in  the  chapter  on  The  Demurrer  (ch.  XXXII).  The  cases 
in  which  it  is  proper  to  move  that  the  pleading  be  made  more 
definite  and  certain,  and  those  involving  the  action  of  the  court 
upon  such  a  motion,  are  collected  in  chapter  XXXIII.  It  is  only 
necessary  to  say  here  that  the  power  of  the  court  to  order  an 
amendment  under  such  circumstances  as  those  mentioned  in  the 
above  section  is  full  and  ample.3  And  if  a  party  is  surprised  by 
an  amendment  which  the  other  party  makes  under  such  circum- 
stances, the  case  should  be  continued  at  the  cost  of  the  adverse 
party.4  Under  the  above  section5  a  variance  between  the  alle- 
gata and  the  probata  cannot  be  held  to  be  fatal,  since  the  court 
may  order  an  amendment  upon  terms.6 

§  947.  Same  —  Upon  cause  being  remanded. —  Where  the  ac- 
tion is  for  work  and  labor  done  and  materials  furnished,  but  the 
petition  fails  to  show  the  nature  of  the  contract,  plaintiff  should 
be  required,  upon  the  remanding  of  the  cause  by  the  appellate 
court,  to  amend  his  petition  so  as  to  make  it  conform  to  the  law.7 

§  948.  Where  part  of  a  pleading  ig  stricken  out. —  Where 
there  are  several  causes  of  action,  or  several  defenses,  a  demurrer 
or  a  motion  to  strike  out  may  be  sustained  as  to  a  part  of  such 
causes  of  action  or  defenses,  leaving,  however,  one  or  more  of  the 

i  Huff  v.  Shepard,  58  Mo.  242.  «  Rev.  Stat.  1899,  sec.  612. 

2  Rev.  Stat.  1899,  sec.  612.  6  Turner  v.  Chillicothe  &  Des  Moines 

3  Atteberry  v.  Powell,  29  Mo.  429.  R.  Co.,  51  Mo.  501;  Gaty  v.  Sack,  19 
*  Fischer  v.  Max,  49  Mo.  404.    See  App.  470. 

§  1008,  post.  i  Phillippi  v.  McLean,  5  App.  587. 


§§  049,  950.]  AMENDING   PLEADINGS.  481 

causes  of  action  or  of  the  defenses  untouched.  Or  a  part  of  a 
single  pleading  may  be  stricken  out,  leaving  still  a  subsisting 
cause  of  action  or  defense.  In  such  cases  the  party  may  proceed 
to  trial  upon  the  causes  or  defenses  remaining,  and  he  cannot  be 
required  to  file  an  amended  pleading.1  If,  on  the  sustaining  of 
a  demurrer  as  to  one  of  two  defendants,  the  petition  has  been 
dismissed  as  to  him,  but  it  was  not  demurred  to  or  adjudged  in- 
sufficient as  to  the  other  defendant,  it  is  not  necessary  that  an 
amended  petition  should  be  filed  in  order  to  proceed  against  the 
latter.2 

§  949.  How  the  amendment  is  to  be  made. —  In  every  plead- 
ing, whether  amendatory  or  supplemental,  the  party  must  set 
forth  in  one  entire  pleading  all  matters  necessary  to  the  proper 
determination  of  his  action  or  defense.3  There  can  be  but  one 
pleading  of  the  same  character  in  the  case  at  the  same  time,  and 
all  matters  which  are  proper  to  be  stated  in  such  a  pleading  must 
be  embraced  in  that  one  pleading.  Our  practice  recognizes  no 
such  thing  as  a  petition  and  a  supplemental  petition,  or  an  answer 
and  a  supplemental  answer,  in  the  same  case  at  the  same  time.4 
Parties  will  not  be  permitted  to  stipulate  that  the  original  and 
amended  answers  shall  be  considered  as  one.5  And  all  the  cases 
above  cited  hold  more  or  less  directly  that  where  an  amended 
pleading  is  filed  the  original  pleading  must  be  considered  as 
abandoned,  and  possesses  no  longer  any  force  as  a  pleading; 
though,  as  we  shall  see  later,  it  may  be  still  used  as  an  admission 
of  the  party.6 

§  950.  Same  —  By  interlineation. —  Minor  amendments  in 
pleadings  may  be  made  by  way  of  erasure  or  interlineation.  Of 
this  character  are  amendments  adding  or  striking  out  the  name 
of  a  party,  correcting  dates  and  obvious  errors,  and  those  of  a 
similar  kind;  as  by  striking  out  a  word.7    But  where  new  aver- 

1  Munford  v.  Keet,  154  Ma  36;  State  amended  pleading  he  loses  the  benefit 
to  use  v.  Finn,  19  App.  560;  Powell  v.  of  his  exceptions.     See  §  806,  ante. 
Palmer,  45  App.  236.  3  Rev.  Stat.  1899,  sec.  666. 

2  Norton  v.  St.  Louis,  97  Mo.  537.  4Nedvidek  v.   Meyer,   46  Mo.   600; 

It  will  be  seen  by  reference  to  the  Ward  v.  Davidson,  89  Mo.  445;  Skin- 
chapter  on  The  Demurrer  (§  844,  ante)  ner  v.  Hutton,  33  Mo.  244;  Woolfolk 
that  the  party  does  not  by  such  course  v.  Woolfolk,  33  Mo.  110;  Ticknor  v. 
lose  his  right  to  have  the  action  of  the  Voorhies,  46  Mo.  110;  Hackett  v.  Phil- 
trial  court  in  sustaining  the  demurrer  adelphia  Underwriters,  79  App.  16. 

or  motion  reviewed  by  the  appellate  5  Basye  v.  Ambrose,  28  Mo.  39. 

court,  if  he  has  properly  saved  his  G  See  §  1005,  post. 

exceptions.     But  if  he  does  file  an  7  Campbell  v-  Wolf,  33  Mo.  459. 
Mo.  Code  Pl.— 31 


482  AMENDING   PLEADINGS.  [§§  951,  952. 

ments  are  made  for  the  purpose  of  introducing  a  new  averment, 
the  pleading  should  be  rewritten  and  should  set  forth  all  the 
matter  necessary  to  constitute  the  complete  pleading,  leaving  the 
abandoned  pleading  undefaced.1  A  plaintiff  was  given  leave  to 
amend  his  surname  in  the  declaration,  and  accordingly  wrote  in 
the  margin  "  amended  by  substituting  the  name  Boisse  for  Bizet 
wherever  it  occurs;"  but  this  was  held  not  to  constitute  an 
amendment.2  In  a  proceeding  to  contest  a  will,  a  mere  formal 
amendment  for  the  purpose  of  joining  the  husband  of  a  female 
plaintiff  may  be  made  without  filing  a  new  petition.3  On  the 
trial  of  a  suit  for  delinquent  taxes,  the  tax-bill  filed  with  the  pe- 
tition contained  three  columns  of  taxes  and  indicated  the  years 
for  which  they  were  due,  but  did  not  designate  the  particular 
funds  to  which  the  amounts  in  the  several  columns  belonged,  the 
word  "  tax  "  alone  being  written  at  the  head  of  each  column.  It 
was  held  that  the  bill  might  be  amended  by  writing  the  word 
"  state  "  at  the  head  of  the  first  column,  the  word  "  county  "  at 
the  head  of  the  second  column,  and  the  word  "  school "  at  the 
head  of  the  third  column.4  As  a  general  rule  a  supplemental  an- 
swer filed  at  the  close  of  the  case  and  after  the  evidence  is  all  in 
cannot  be  made  by  erasure  and  interlineation.5 

§  951.  Where  the  amendment  is  not  actually  made.— If  an 
amendment  has  been  permitted,  but  the  actual  change  of  lan- 
guage has  not  been  made,  the  appellate  court  may  properly  treat 
it  as  if  it  had  been  in  fact  made.6 

§  952.  The  number  of  amendments  allowable. —  The  pro- 
vision of  section  623 7  that  if  a  third  pleading  is  adjudged  insuffi- 
cient no  further  pleading  shall  be  filed,  but  judgment  shall  be 
rendered,  is  mandatory;  the  court  has  no  power  to  permit  the 
filing  of  a  subssquent  pleading.8  But  that  section  applies  only 
to  cases  in  which  three  pleadings  have  been  adjudged  insufficient 
upon  demurrer  or  motion.9  A  pleading  which  is  voluntarily 
amended  is  not  to  be  counted  as  one  of  the  three.10    Nor  is  it 

i  South  Joplin  Land  Co.  v.  Case,  104  6  Underwood  v.  Bishop,  67  Mo.  374; 

Mo.  572.  Stone  v.  Travelers'  Ins.  Co.,   78  Mo. 

2  Boisse  v.  Langham,  1  Mo.  572.  655;  Habel  v.  Union  Depot  R.  Co.,  140 

3  Sunderland  v.  Hood,  13  App.  232.  Mo.  159.     But  see  §  1009,  j)ost. 
*  State  ex  rel.  v.  Phillips,  102  Mo.  7  Rev.  Stat.  1899. 

C64.  8  Beardslee  v.  Morgner,  73  Mo.  22. 

s  Merchants'   Ins.   Co.   v.   Excelsior  9  Spurlock  v.  Mo.  Pac.  R.  Co.,  93  Mo. 

Ins.  Co.,  4  App.  578.  (This  is  taken  from  13,   93  Mo.  530;  Barton  v.  Martin,  54 

the  opinion  on  file,  and  not  from  the  App.  134. 

syllabus  in  the  report.)  l0  Barton  v.  Martin,  54  App.  134 


•§  952.]  AMENDING   PLEADINGS.  483 

sufficient  that  the  third  pleading  has  been  held  bad  upon  objec- 
tion to  the  introduction  of  evidence  upon  the  ground  that  it 
stated  no  cause  of  action.1  And  the  fact  that  the  case  was  tried 
upon  a  third  amended  petition,  without  any  showing  that  the 
prior  petitions  had  been  adjudged  insufficient  on  demurrer  or 
motion,  will  not  warrant  the  court  in  excluding  the  introduction 
of  all  evidence  on  the  trial.2  The  fact  that  judgment  has  been 
entered  on  demurrer  to  the  second  amended  petition  will  not 
bar  a  subsequent-  action  on  a  sufficient  petition.3 

1  Spurlock  v. Mo. Pac  R.  Co.,93  Ma  la        3  Bennett  v.  Southern  Bank,  61  App. 

2  Id.,  93  Ma  530.  297. 


CHAPTER  XLI. 

AMENDING  PLEADINGS  —  ADDING,  DROPPING  OR  CHANGING 

PARTIES. 


953.  The  statutory  provisions. 
954  Adding  parties  plaintiff. 

955.  Adding  parties  defendant. 

956.  Dropping  parties. 

957.  Substituting  parties  and  cor- 

recting names. 


§  959.  Suit  in  name  of  the  state. 

960.  Guardian  or  minor. 

961.  Instances  of  changing  parties. 
963.  Same  —  Corporation    or   indi- 
viduals. 


§  953.  The  statutory  provisions. —  "When  a  complete  deter- 
mination of  the  controversy  cannot  be  had  without  the  presence 
of  other  parties,  the  court  may  order  them  to  be  brought  in  by 
an  amendment  of  the  petition,  or  by  a  supplemental  petition  and 
a  new  summons.1  Furthermore,  the  court  may  at  any  time  before 
final  judgment,  in  furtherance  of  justice  and  on  such  terms  as 
may  be  proper,  amend  any  pleading  or  proceeding  by  adding  or 
striking  out  the  name  of  any  party,  or  by  correcting  a  mistake 
in  the  name  of  a  party.2  If,  pending  the  action,  the  interest  in 
the  cause  of  action  is  transferred  by  any  means  other  than  by 
death,  marriage  or  other  disability  of  the  party,  the  action  may  be 
continued  in  the  name  of  the  original  party,  if  the  transferee 
will  indemnify  him  against  costs  and  damages,  or  the  court  may 
allow  the  person  to  whom  the  transfer  is  made  to  be  substituted 
in  the  action;  and  upon  application  of  the  party  making  the 
transfer,  the  court  must  require  the  transferee  either  to  give  such 
indemnity  or  to  cause  himself  to  be  substituted  as  a  party,  and 
upon  his  omission  to  do  one  or  the  other  the  suit  will  be  dismissed.3 

§  954.  Adding  parties  plaintiff*. —  Prior  to  the  adoption  of 
the  Code  in  this  state  the  supreme  court  declared  the  rule  to  be 
that  if  one  who  was  a  necessary  party  plaintiff  was  not  named 
as  one  of  the  plaintiffs  at  the  institution  of  the  suit,  his  name 
could  not  be  afterwards  added  by  amendment.  The  position 
taken  by  the  court  was  that  "mistakes  in  the  names  of  parties 
have  been  amended,  but  to  allow  new  plaintiffs  or  defendants  to 
be  inserted  in  a  declaration  by  way  of  amendment  would  be 


i  Rev.  Stat.  1899,  sec.  65a  2  Rev.  stat  1899,  sec.  657.  « Rev.  Stat.  1899,  sec.  764. 


§  955.]  ADDING,    DROPPING   OE   CHANGING   PARTIES.  485 

going  a  length  wholly  unprecedented;  "*  and  the  judgment  was 
reversed  for  that  reason.  A  more  liberal  rule  now  prevails,  as 
appears  from  the  sections  of  the  statute  cited  in  the  preceding- 
section.  If  a  suit  is  brought  in  the  name  of  a  cestui  que  trust, 
the  trustee  may  be  added  as  a  party  plaintiff,  and  the  petition 
amended  accordingly.2  And  this  may  be  done  in  ejectment, 
where  the  action  was  begun  by  the  beneficiaries  in  a  deed  of 
trust.3  If  it  appears  on  the  trial  of  an  interplea  that  the  inter- 
pleader claims  the  property  only  as  cestui  que  trust,  he  may  sub- 
stitute his  trustee  as  interpleader.4  "Where  the  suit  is  begun  by 
a  woman,  and  she  afterward  marries,  her  husband  may  be  made 
a  joint  plaintiff  by  amendment  at  any  time  before  final  judg- 
ment.5 But  if  an  action  is  brought  by  the  husband  for  a  cause 
of  action  belonging  to  the  wife,  the  wife  cannot  be  made  a  party 
plaintiff  by  amendment,  since  such  an  amendment  would  consti- 
tute a  change  of  the  cause  of  action ;  before  the  amendment  the 
husband  was  the  real  plaintiff,  but  after  the  amendment  the  wife 
would  be  the  real  plaintiff.6  In  a  case  decided  by  the  Kansas 
City  court  of  appeals  a  plaintiff  in  replevin  was  allowed  to  amend 
both  his  petition  and  affidavit  by  adding  a  co-plaintiff.7 

§  955.  Adding  parties  defendant. —  The  power  of  the  court  to 
direct  that  other  parties  shall  be  joined  as  defendants,  where  such 
joinder  is  necessary  to  a  complete  determination  of  the  contro- 
versy, is  unquestioned.9  Even  parties  who  do  not  become  inter- 
ested in  the  property  in  litigation  until  after  the  action  is  com- 
menced may  be  made  defendants  by  amendment.9  Thus,  where  a 
suit  in  equity  was  brought  to  charge  the  separate  estate  of  a  married 
woman,  and  pending  the  suit  a  sale  was  made  under  a  mortgage 
of  the  property  sought  to  be  charged,  the  petition  may  be  amended 
by  making  the  mortgagee  a  party  defendant,  so  as  to  charge  the 

1  Chouteau  v.  Hewitt,  10  Ma  131,  ment  by  adding  a  new  party  plaintiff 

134  before  the  trial.     Schergens  v.  Wet- 

*  Ragan  v.  Kansas  City  &  S.  E.  R.  zell,  12  App.  596.  And  this  may  be 
Co.,  Ill  Ma  456.  done  in  the  circuit  court  after  an  ap- 

3  Ebersole  v.  Rankin,  102  Mo.  488.  peal  from  the  justice.  House  v.  Dun- 
In  this  case  an   heir  who  had  been  can,  50  Mo.  453. 

omitted  as  plaintiff  was  also  allowed       5  Crockett  v.  St.  Louis  Tr.  Co.,  52  Mo. 

to  be  made  such  by  amendment.  457. 

*  Winklemaier  v.  Weaver,  28  Mo.        6  Courtney  v.  Sheehy,  38  App.  290. 
358.    It  may  be  added  as  illustrating        7  Deyerle  v.  Hunt,  50  App.  541. 

the  liberality  of  the  courts  in  this  re-        80'FaLlon  v.  Clopton,  89  Ma  284; 
spect  that  it  has  been  held  that  a  jus-    McLeod  v.  Snyder,  110  Mo.  298. 
tice  of  the  peace  may  allow  an  amend-       a  Reyburn  v.  Mitchell,  106  Mo.  365. 


486  AMENDING    PLEADINGS.  [§§  956,  957. 

surplus  in  his  bands  with  the  payment  of  the  debt.1  .But  this  rule 
cannot  be  so  extended  as  to  prejudice  the  adverse  party.  There- 
fore in  an  action  to  enforce  a  mechanic's  lien,  which  was  brought 
by  a  materialman  against  the  owner  alone,  the  petition  cannot 
be  amended  alter  the  expiration  of  the  ninety  days  allowed  for 
bringing  the  suit  so  as  to  make  the  contractor  a  party  defendant.2 
But  an  amendment  correcting  the  name  of  the  contractor  is  al- 
lowable.3 Where  the  action  is  on  a  special  tax-bill,  and  the  party 
named  in  the  tax-bill,  and  who  was  also  named  as  defendant  in 
the  action,  was  dead  at  the  time,  his  heirs  cannot,  after  the  action 
is  barred  as  to  them,  be  brought  in  by  the  issuance  of  amended 
tax-bills,  and  by  amending  the  petition  so  as  to  make  them  de- 
fendants.4 The  fact  that  the  title  of  a  cause  is  changed  because 
of  the  marriage  of  the  female  plaintiff  does  not  make  the  suit  a 
new  one ;  it  remains  the  same  suit,  though  it  has  become  neces- 
sary to  make  the  husband  a  party.5 

§956.  Dropping  parties. —  Amendments  may  be  made  by 
striking  out  the  name  of  a  party;  and,  if  the  ends  of  justice  re- 
quire it,  such  amendment  must  be  permitted.6  Where  the  name 
of  one  of  the  plaintiffs  is  stricken  out,  this  does  not  necessarily 
change  the  cause  of  action,7  any  more  than  the  cause  of  action 
is  changed  by  adding  the  name  of  the  husband  and  changing 
the  name  of  the  female  plaintiff,  where  she  marries  after  the  in- 
stitution of  the  suit.8  If  a  wife  is  improperly  joined  in  an  ac- 
tion of  ejectment  brought  by  the  husband  for  her  land,  her  name 
may  be  stricken  out,  even  in  the  appellate  court.9  Where,  in  an 
action  before  a  justice,  three  persons  sue  as  obligees,  the  state- 
ment cannot  be  amended  in  the  circuit  court  by  dropping  the 
names  of  two  of  the  plaintiffs.10  But  if  a  party  has  been  made  a 
co-plaintiff  through  inadvertence,  who  has  no  interest  in  the  suitr 
and  is  neither  a  necessary  nor  proper  party,  his  name  may  be 
stricken  out  of  the  petition,  even  after  judgment.11 

§  957.  Substituting  parties  and  correcting  names.— -The 
name  of  one  party  plaintiff  may  be  stricken  out  and  another  sub- 

i  Pratt  v.  Walther,  42  App.  491.  7  Davis  v.  Ritchie,  85  Mo.  501.     See, 

2  Bombeck  v.  Devoorss,  19  App.  38.  on  this  point,  §§  958, 961  and  970,  post 

3  Newman  v.  Jefferson  City,  L.  &  S.  8  Church  v.  Chicago  &  Alton  R.  Co., 
W.  R.  Co.,  19  App.  100.  119  Mo.  203. 

«  Eyerman  v.  Scollay,  16  App.  498.  9  Mueller  v.  Kaessman,  84  Mo.  318. 

5  Church  v.  Chicago  &  Alton  R  Co.,  10  Slaughter  v.  Davenport,  151  Mo.  2G. 
119  Ma  203.  "  Powell  v.  Banks,  146  Mo.  620. 

6  Thompson  v.  Moseley,  29  Mo.  477. 


§  958.]  ADDING,    DROPPING   OR   CHANGING   PARTIES.  487 

stituted  for  it  even  at  the  trial ; 1  as  where  the  cause  of  action  is 
assigned  after  the  institution  of  the  suit,2  or  where  the  one  whose 
name  was  stricken  out  was  made  a  plaintiff  through  ignorance 
of  the  real  facts.1  Where  plaintiffs  sue  as  a  corporation,  they  may 
amend  the  petition  by  inserting  their  individual  names  as  plaint- 
iffs, and  alleging  that  they  were  copartners  doing  business  under 
the  name  in  which  the  suit  was  first  brought.3  But  where  the 
original  petition  states  a  cause  of  action  against  individuals  as 
constituting  a  copartnership,  and  the  amended  petition  states 
one  against  a  corporation,  the  corporation,  before  the  court  can 
obtain  jurisdiction  over  it,  must  be  in  court  on  voluntary  appear- 
ance, or  must  be  brought  in  by  service  of  new  process ;  and  it  is 
immaterial  that  the  name  of  the  original  firm  was  the  same  as 
that  adopted  by  the  corporation,  and  that  the  stockholders  in 
the  corporation  had  previously  composed  the  firm.4  If,  while 
a  suit  is  pending  against  a  railroad  company,  the  defendant 
company  is  consolidated  with  another,  the  consolidated  corpo- 
ration may  be  made  a  party  defendant,  in  place  of  one  of  the 
original  companies,  by  a  mere  amendment  of  the  pleadings,  and 
without  the  issuance  of  process  for  such  consolidated  corpora- 
tion. The  ground  of  this  decision  was  that  an  action  commenced 
against  one  of  the  former  corporations  does  not  abate  by  the  con- 
solidation, though  the  effect  may  be  to  dissolve  the  old  corpora- 
tion as  such ;  the  action  may  be  revived  against  the  new  corpora- 
tion by  a  mere  amendment.5 

§  958.  The  change  of  a  party  plaintiff  by  the  substitution  of  a 
new  plaintiff  is  not  necessarily  a  change  in  the  cause  of  action.6 
In  WhitehUl  <&  Son  v.  Keen,1  the  action  was  brought  by  attach- 
ment in  the  name  of  Whitsel  &  Son.  Plaintiff  was  afterwards 
permitted  to  correct  the  name  in  the  petition  and  writ  to  White- 
hill  &  Son.  It  appears  that  the  latter  name  was  the  name  of  a 
corporation,  and  that  there  was  no  evidence  whether  there  was 
such  a  firm  or  corporation  as  Whitsel  &  Son.  The  court  says: 
"  Treating  the  error  in  the  plaintiff  corporation  as  clerical  merely, 

1  Tayon  v.  Ladew,  33  Mo.  205.  8  Kinion  v.  Kansas  City,  Ft.  S.  &  M. 

2  Wellman  v.  Dismukes,  42  Mo.  101 ;  R.  Co.,  39  App.  575.  Consult  also  §  963, 
Todd  v.  Crutsinger,  30  App.  145.  post. 

3  Ward  v.  Pine,  50  Mo.  38.  See  also  (i  School  District  v.  Wallace,  75  App. 
£  963.  post.  317.   See  in  this  connection  §  956,  ante, 

*  Thompson  v.  Allen,  86  Mo.  85.     A    and  §§  961,  970,  post. 
case  involving  this  question  is  that  of        7  79  App.  125. 
Hajek    v.   Bohemian-Slavonian   Ben. 
Society,  66  App.  568. 


4SS  AMENDING  PLEADINGS.  [§§  959-9G1. 

which  is  apparent,  the  circuit  court  unquestionably  had  the  right 
to  order  the  mistake  corrected  by  proper  amendment." l  In  an 
attachment  suit  plaintiff  may  amend  his  petition,  affidavit  and 
bond  by  correcting  the  christian  name  of  the  defendant.2  In  one 
case,  being  an  action  in  ejectment,  the  name  of  one  plaintiff  was 
stricken  out  and  the  name  of  her  mother  was  substituted,  it  being 
shown  to  the  court  that  when  the  action  was  brought  it  was  not 
known  that  the  mother  was  living  and  the  daughter  was  made 
a  plaintiff  as  her  heir.3 

§  959.  Suits  in  name  of  the  state. — Where  an  action  is  brought 
upon  an  official  bond  and  plaintiff  sues  in  his  own  name,  an 
amendment  may  properly  be  permitted  substituting  the  state  as 
the  nominal  plaintiff.4  If,  on  the  other  hand,  the  action  is  im- 
properly brought  in  the  name  of  the  state  to  the  use  of  a  party, 
where  the  bond  was  given  to  such  party,  the  petition  may  be 
amended  by  striking  out  the  name  of  the  state  as  plaintiff  and 
substituting  that  of  the  obligee  in  the  bond.5 

§  CGO,  Guardian  or  minor. —  Where  an  action  is  brought  for 
the  death  of  a  parent  in  the  name  of  the  guardian  of  the  minor 
children,  and  the  entire  petition  reads  as  though  the  guardian  was 
suing  and  was  claiming  damages,  but  the  names  of  the  minor 
children  are  stated  in  the  caption,  and  the  petition  is  manifestly 
brought  under  the  damage  act,  under  which  act  the  children  alone 
are  entitled  to  recover,  it  is  erroneous  to  refuse  leave  to  amend 
the  petition  by  making  the  minor  children  the  substantial  plaint- 
iffs, though  the  request  to  amend  is  not  made  until  after  the  trial 
has  begun.6 

§  961.  Instances  of  changing  parties, —  An  action  upon  a 
special  tax-bill  was  brought  in  the  name  of  the  party  to  whom 
it  was  originally  issued  and  made  payable.  At  that  time  the  bill 
was  held  by  a  certain  bank  as  collateral  security,  but  while  the 
action  was  pending  the  tax-bill  was  assigned  to  the  bank,  and 
the  bank  was  then  substituted  as  plaintiff,  and  an  amended  peti- 
tion was  filed  in  its  name.  In  overruling  the  objection  that  the 
amendment  was  improper  because  it  substituted  a  cause  of  action 
which  did  not  exist  before  the  amendment  was  made,  the  supreme 
court  says  that  the  decision  of  that  question  turns  upon  the  ques- 

1 79  App.,  p.  129.  Yet  in  the  eye  of  the  2  Middleton  v.  Frame,  21  Mo.  412. 

law  the  firm  and  the  corporation  are  3  Tayon  v.  Ladew,  33  Mo.  205. 

two  different  persons.  Allen  v.  Frumet  *  State  ex  rel.  v.  Shelby,  75  Mo.  482. 

Min.  &  Smelting  Co.,  73  Mo.  688.    See  s  Busche  v.  McElroy,  12  App.  567. 

note  4  on  preceding  page.  6  Weber  v.  Hannibal,  83  Mo.  262. 


§  962.]  ADDING,    DROPPING   OR   CHANGING   PARTIES.  489 

tion  whether  the  original  contractor  had  the  right  to  sue  on  the 
bill  while  the  bank  held  it  as  collateral  security.  For  if  he  had 
that  right,  and  the  bill  was  afterward  absolutely  transferred  to 
plaintiff,  section  764 l  authorizes  the  substitution  of  the  bank  as 
plaintiff.  This  question  was  answered  in  the  affirmative,  it  ap- 
pearing that  while  the  bank  held  the  tax-bill  as  collateral  it 
turned  the  bill  over  to  the  original  contractor  for  collection  and 
authorized  him  to  sue,  if  necessary.  The  court  says  that  this  au- 
thority constituted  the  contractor  the  trustee  of  an  express  trust, 
and  gave  him  the  right  to  sue  in  his  own  name,  and  the  fact  that 
it  was  impressed  with  a  trust  in  favor  of  the  bank  did  not  de- 
prive him  of  that  right.2  In  Zottman  v.  £ar?iett,3  the  action  was 
instituted  against  eight  defendants,  charging  that  the  death  of 
plaintiff's  husband  was  caused  by  the  carelessness  and  negligence 
of  defendants  and  their  servants  in  the  construction  of  a  certain 
building.  The  plaintiff  afterwards  dismissed  the  action  as  to  all 
but  one  of  the  defendants,  and  filed  an  amended  petition  charg- 
ing that  the  sole  remaining  defendant  was  the  architect  in  charge 
of  the  construction  of  the  building,  and  that  her  husband's  death 
was  caused  by  the  negligence  of  this  defendant  as  such  architect 
in  the  direction  and  management  of  the  work,  and  in  the  use  by 
him  of  improper  and  unsafe  materials.  It  was  held  that  the  amend- 
ment was  allowable,  and  that  the  cause  of  action  was  not  changed.4 
§962.  Same — Further  instances. — "Where  a  creditor's  bill 
was  filed  to  subject  lands  to  the  satisfaction  of  a  judgment,  and 
after  the  institution  of  the  suit  the  legal  title  to  the  lands  passed 
to  the  wife  of  the  grantee  of  the  debtor,  this  did  not  make  it 
necessary  that  plaintiffs  should  amend  their  petition,  though 
they  were  at  liberty  to  do  so  if  they  chose.5  If,  at  the  trial  of 
an  interplea,  it  is  objected  that  the  interpleader  claims  the  prop- 
erty only  as  a  cestui  que  trust,  he  may  substitute  his  trustee  as 
interpleader.6  The  case  of  Harfcness  v.  Julian'1  carries  the  right 
of  substitution  to  the  utmost  limit.  An  action  was  commenced 
by  A,  as  an  administrator  of  B,  alleging  that  defendant  exe- 
cuted his  promissory  note  to  B  in  his  life-time.     Defendant  in- 

1  Rev.  Stat.  1899.  is  commented  on-    Lumpkin  v.  Col- 

2  Springfield  v.  Weaver,  137  Mo.  650.  lier,  69  Ma  170. 

3  62  Mo.  159.  5  Jamison  v.  Bagot,  106  Mo.  240. 

4  This  rule  is  sharply  emphasized  by  6  Winklemaier  v.  Weaver,   28  Mo. 
the  remarks  of  the  supreme  court  in  358. 

a  later  case,  in  which  the  above  case       7  53  Mo.  238. 


-1 90  AMENDING    PLEADINGS.  [§  ^63. 

terposed  the  defense  that  plaintiff  had  no  legal  capacity  to  sue 
as  the  administrator  of  B,  since  B  was  still  alive.  Thereupon 
the  plaintiff  was  permitted  to  amend  his  petition  so  as  to  sue  as 
the  administrator  of  C,  alleging  in  the  petition  that  B  had 
transferred  the  note  to  C  during  the  life-time  of  the  latter.  The 
supreme  court  says  that  it  cannot  see  how  the  amendment  changed 
the  nature  of  the  claim  or  of  the  defense.  It  says:  "  The  suit  is 
still  founded  on  the  same  note.  It  is  still  charged  that  the  note 
was  executed  by  defendant  to  B,  but  it  is  added  that  it  was 
transferred  by  B  to  C,  and  that  plaintiff  owns  it,  not  as  the 
representative  of  B,  but  of  C,  it  having  been  originally  stated 
by  mistake  that  the  plaintiff  was  the  administrator  of  B,  who  is 
still  alive.  It  cannot  be  seen  how  this  amendment  could  injure 
the  defendants,  and  I  think  it  comes  exactly  within  the  objects 
of  the  statute,  and  that  the  court  properly  permitted  the  amend- 
ment."    (p.  242.) 

§  963.  Same  —  Corporation  or  individuals. —  In  Lilly  v.  Tob- 
hein 1  the  proceedings  were  instituted  in  the  name  of  an  unincor- 
porated church  society,  which  it  was  decided  had  no  power  or 
legal  capacity  to  sue,  and  thereupon  an  amended  petition  was 
filed,  adding  as  plaintiffs  certain  members  of  the  church  who 
were  alleged  to  be  its  trustees,  and  who  sued  for  themselves  and 
all  other  members  of  the  association.  It  was  held  that  the 
amendment  was  proper.  In  a  decision  by  the  Kansas  City  court 
of  appeals  it  is  said  that,  while  the  substitution  of  a  new  party 
plaintiff  is  a  change  in  the  cause  of  action  and  therefore  improper, 
yet  the  mere  change  of  the  name  of  the  plaintiff  from  that  of 
"  Agency  Village  School  District  No.  3  "  to  that  of  "  School  Dis- 
trict of  the  Inhabitants  of  the  Village  of  Agency  "  is  not  the 
substitution  of  a  new  party,  but  is  simply  a  correction  in  the 
name  of  the  party.2  In  a  case  before  the  St.  Louis  court  of  ap- 
peals, an  attachment  was  brought  in  the  name  of  certain  plaint- 
iffs as  directors  of  a  school  district.  The  petition  alleged  the 
name  and  corporate  existence  of  the  school  district  and  its  ca- 
pacity as  such  to  sue,  and  contained  no  direct  averment  of  any 
legal  right  in  the  plaintiffs  to  sue  as  directors.  Though  the  suit 
was  brought  by  attachment,  the  trial  court  afterwards  permitted 
an  amendment  to  be  made  so  as  to  make  the  action  one  by  the 
school  district  as  a  corporate  body,  and  by  correcting  the  name 
of  the  school  district.    The  court  of  appeals  held  that  this  amend- 

1 103  Mo.  477.  z  School  District  v.  Wallace,  75  App.  317. 


§  963. J  ADDING,   DROPPING    OE   CHANGING   PARTIES.  491 

ment  was  proper.1  But  in  a  common-law  action  against  a  cor- 
poration for  the  conversion  of  a  promissory  note,  the  plaintiff, 
failing  to  secure  service  on  the  corporation,  made  certain  stock- 
holders parties,  and  filed  an  amended  petition  alleging  the  dis- 
solution of  the  corporation  and  seeking  to  make  the  additional 
defendants  liable  under  section  9S7,2  which  provides  that  if  a 
corporation  dissolves  leaving  debts  unpaid  suits  may  be  brought 
against  any  person  or  persons  who  are  stockholders  at  the  time 
of  dissolution  without  joining  the  company  in  the  suit.  It  was  held 
that  this  constituted  a  change  in  the  cause  of  action,  and  that 
the  amended  petition  should  be  stricken  out.3  In  another  case 
there  were  two  organizations  belonging  to  the  same  fraternal 
order,  with  similar,  but  not  identical,  names,  one  of  which  was 
incorporated  and  the  other  not.  An  action  was  brought  on  a 
contract  which  was  in  fact  made  with  the  corporate  body,  but 
the  petition  and  summons  named  the  unincorporated  organiza- 
tion as  the  defendant,  the  return  of  the  sheriff  showed  service 
upon  the  unincorporated  organization,  and  it  appeared  and 
pleaded  in  abatement  and  to  the  merits,  alleging  that  it  was  not 
incorporated.  It  was  held  that  the  application  of  plaintiff  to 
amend  the  name  of  the  defendant  to  that  of  the  corporation  was 
properly  refused.4 

i  Davis  v.  Boyce,  73  App.  563.  4  Hajek  v.  Bohemian-Slavonian  Ben. 

2  Rev.  Stat  1899.  Society,  66  App.  568.    Other  decisions 

3  Sears  v.  Missouri  Mortgage  Loan  on  this  point  will  be  found  in  §  958, 
Co.,  56  App.  122.  ante. 


CHAPTER  XL11. 


THE  AMENDMENT  MUST  NOT  CHANGE  THE  CAUSE  OF  ACTION. 


§  964.  The  rule  on  this  subject 

965.  The  rule  in  justices'  courts  ap- 

plies. 

966.  Decisions  applying  the  rule. 

967.  The  test  of  change. 

968.  A  further  test 

969.  Changing  action  from  legal  to 

equitable. 

970.  When  a  change  of  parties  ef- 

fects a  change  in  the  cause 
of  action. 

972.  Actions  arising  in  contract  and 

those  arising  in  tort. 

973.  Actions  ex  delicto   not  inter- 

changeable. 

974.  Action  on  joint  and  action  on 

several  contract 


§  975.  When  there  is  a  change  in  the 
prcyer  for  relief. 

976.  Cases  illustrating  the  rules  as 

to  change    in   cause  of  ac- 
tion. 

977.  Same  —  In  attachment  cases. 

978.  Same  —  In    mechanics'    lien 

cases. 

979.  Same  —  In  replevin  cases. 

980.  Same  —  In  actions  against  car- 

riers. 

981.  Same  —  In  actions  against  rail- 

road companies. 

982.  Same  —  Action  by  employee. 

983.  Introducing  matter  occurring 

after  suit  brought 


§  964.  The  rule  on  the  subject. —  A  petition  cannot  be 
amended  by  substituting  a  different  cause  of  action  for  that 
stated  in  the  original  petition.1  Even  the  liberal  provisions  of 
the  Code  do  not  permit  such  a  change.2  Nor  will  section  661,3 
which  provides  that  a  petition  may  be  amended  of  course  and 
without  costs  at  any  time  before  the  answer  is  filed,  justify  such 
an  amendment.4 

§  965.  The  rule  injustices'  courts  applies. —  The  rule  as  to 
amendment  in  cases  originating  before  a  justice,  and  in  those 
originating  in  the  circuit  court,  is  in  no  wise  different  in  prin- 
ciple. The  consensus  of  the  decisions  in  regard  to  amendments 
in  the  former  class  of  cases  is  that  the  amendment  is  allowable 


1  Pruett  v.  Warren,  71  App.  84. 

2 Lumpkin  v.  Collier,  69  Mo.  170; 
Daudt  v.  Machens,  13  App.  592;  Par- 
ker v.  Rodes,  79  Ma  88;  Heman  v. 
Glann,  129  Mo.  325. 

s  Rev.  Stat  1899. 

♦Lumpkin  v.   Collier,   69  Mo.  170; 


Parker  v.  Rodes,  79  Ma  8&  There  is 
one  decision  of  the  St.  Louis  court  of 
appeals  which  apparently  holds  that 
an  amendment  is  not  to  be  held  im- 
proper because  it  changes  the  cause 
of  action.  Robertson  v.  Springfield  & 
So.  R  Co.,  21  App.  633. 


§§  960,  967.]     must  not  change  cause  of  action.  493 

where  its  effect  is  to  omit  something  from  the  original  statement 
which  yet  leaves  a  cause  of  action  stated  in  the  original  state- 
ment, or  where  some  averment  is  added  which  was  within  the 
manifest  intendment  of  the  pleader  in  framing  the  original  state- 
ment, thus  in  each  case  leaving  the  cause  of  action  substantially 
the  same.1  Therefore  an  amendment  which  merely  amplifies  the 
original  statement  is  proper.2 

§  966.  Decisions  applying  the  rule. —  Where  the  original  pe- 
tition is  merely  an  inartistic  and  imperfect  statement  of  the 
cause  of  action,  and  the  amendment  is  in  correction  of  it,  but 
both  are  based  upon  the  same  statutory  grounds,  the  amendment 
does  not  constitute  a  new  demand,  and  there  is  no  change  in  the 
cause  of  action.3  An  amendment  does  not  constitute  a  new 
cause  of  action  which  simply  adds  another  claim  for  loss  from 
overflow  to  plaintiff's  land  additional  to  those  set  out  in  the  orig- 
inal petition.4  In  an  action  based  upon  negligence,  an  amended 
petition  which  simply  undertakes  to  specify  the  negligent  acts 
complained  of,  where  the  original  petition  contained  only  a  gen- 
eral charge  of  negligence,  does  not  constitute  a  change  of  the 
cause  of  action.5  What  was  intended  to  be  embraced  in  the 
original  cause  of  action  must  be  gathered  from  the  face  of  the 
pleading;  the  court  cannot  inquire  what  was  the  private  intent 
of  the  party,  but  can  only  look  to  the  paper  to  gather  the  infor- 
mation.6 

§  967.  The  test  of  change. —  There  are  two  special  tests  by 
which  to  determine  whether  a  second  petition  is  an  amendment 
of  the  first  or  is  the  substitution  of  a  new  cause  of  action.  These 
are,  first,  that  the  same  evidence  will  support  both  petitions;  and 
second,  that  the  same  measure  of  damages  will  apply  to  both.  If 
these  tests  are  answerable  in  the  affirmative,  it  is  an  amendment ; 
if  in  the  negative,  it  is  a  substitution.7  There  are  two  cases  which 
sharply  draw  the  distinction  between  amendments  which  meet 
this  test  and  those  which  do  not.     Lottman  v.  Bamett 8  is  a  case 

iThieman    v.   Goodnight,   17    App.  Co.,  20  App.  448;  Sturges  v.  Botts,  24 

429;  Sturges  v.   Botts,  24  App.   282;  App.  282. 

Heman  v.  Fanning,  33  App.  50;  Bren-  That  an  amendment  cannot  be  made 

nan  v.  McMenamy,  78  App.  122.  in  order  to  give  the  court  jurisdiction, 

2  Eubank  v.  Pope,  27  App.  463.  if  it  did  not  have  it  before  the  amend- 

3  Sims  v.  Field,  24  App.  557.  ment  was  made,  see  §  945,  ante. 

4  James  v.  Kansas  City,  P.  &  G.  R.  ?Scovill  v.  Glassner,  79  Mo.  449; 
Co..  69  App  431.  Sims  v.  Field,  24  App.  557;  Liese  v. 

s  Gourley  v.  St.  L  &  S.  F.  R.  Co.,  35    Meyer,  143  Mo.  547. 
App.  87.  8  62  Mo.  159. 

«  Gregory  v.  Wabash,  St  L.  &  P.  R. 


494  AMENDING    PLEADINGS.  [§  9G8. 

in  which  it  would  require  precisely  the  same  evidence  to  support 
the  action  after  the  amendment  as  before.  Lumpkin  v.  Collier1 
is  a  case  of  a  directly  opposite  character.  In  an  appellate  court 
it  is  stated  that  the  doctrine  as  to  the  first  test,  viz.,  that 
the  evidence  must  be  the  same,  rests  on  mere  dicta,  and  that  what 
is  really  meant  is  that  the  right  of  amendment  is  not  to  be  de- 
termined by  the  quantity  of  the  evidence,  but  by  the  character 
of  the  evidence  necessary  to  support  both  petitions;  and  not  by 
the  quantum^  but  by  the  standard  of  damages  under  both.  The 
test  is  also  criticised  in  Pratt  v.  Walther*  where  it  is  said :  " One 
of  these  so-called  tests  is  that  the  evidence  which  would  support 
the  original  would  not  support  the  amended  petition.  But  if  this 
test  is  to  prevail,  no  amendment  is  permissible  except  such  as  is 
necessary  to  cure  mere  defectiveness  of  statement.  Obviously, 
it  is  not  broad  enough ;  since,  if  an  amended  petition  must  in  all 
cases  be  such  that  the  same  evidence  which  would  support  the 
original  would  support  it,  no  amendment  is  necessary.  Another 
so-called  test  is  that  the  amended  petition  should  embrace  the 
original  cause  sued  on,  with  a  like  rule  in  respect  of  the  measure 
of  damages.  But  of  what  value  is  this  test,  where  the  object  of 
the  suit  is  not  to  recover  damages  ?  "  (p.  495.)  The  court  adds 
that  the  test  above  laid  down  can  never  be  considered  a  proper 
test  in  suits  of  an  equitable  character.4 

§  908.  A  further  test. —  An  additional  test  is  laid  down  in  a 
recent  decision  of  the  supreme  court,5  where  it  is  said:  "As  long 
as  the  plaintiff  adheres  to  the  contract  or  injury  originally  de- 
clared on,  an  alteration  of  the  modes  in  which  the  defendant  has 
broken  the  contract  or  caused  the  injury  is  not  an  introduction 
of  a  riew  cause  of  action.  If  the  amendment  is  merely  the  same 
matter  more  fully  or  differently  laid  to  meet  the  possible  scope  of 
the  testimony,  it  is  not  a  change  of  the  cause  of  action."  (p.  364.) 
In  that  case,  which  was  an  action  to  recover  .the  value  of  a  cow 
which  was  killed  by  defendant's  train,  the  original  statement 
charged  that  the  train  was  run  at  a  greater  rate  of  speed  than 
that  allowed  by  ordinance,  and  also  that  there  was  a  failure  to 
ring  the  bell  or  sound  the  whistle  as  required  by  statute,  but 
there  was  no  allegation  in  connection  with  the  last  ground  of 
recovery  that  the  cow  was  killed  by  reason  of  such  failure.    The 

1 69  Mo.  170.  4  42  App.,  p.  495. 

''Schwab  Clothing  Co.  v.  St.  Louis,  &Rippee  v.  Kansas  City,  Ft.  S.  &  M. 

T.  M.  &  S.  R.  Co.,  71  App.  241.  R.  Co.,  154  Mo.  35d 
3  42  App.  491. 


§§  909,  970.]      MUST   NOT    CHANGE   CAUSE    OF   ACTION.  495 

amended  statement  supplied  this  omission,  and  it  was  held  that 
no  new  cause  of  action  was  stated. 

§  969.  Changing  action  from  legal  to  equitable.— A  change 
from  a  legal  to  an  equitable  proceeding  is  not  permissible.  Thus 
where  the  original  petition  is  in  the  nature  of  an  action  at  law 
upon  an  administrator's  bond,  an  amended  petition  which  seeks 
to  set  aside  the  administrator's  final  settlement  is  a  substitution 
of  one  cause  of  action  for  another.1  But  where  both  the  original 
and  the  amended  petition  are  equitable  in  their  nature,  plaintiff 
seeking  in  each  of  them  to  charge  the  separate»estate  of  the  same 
married  woman  for  the  same  debt,  and  upon  the  same  promise 
made  by  her,  the  only  point  of  divergence  being  that  after  bring- 
ing the  suit  a  portion  of  the  estate  sought  to  be  charged  was 
diverted  to  the  satisfaction  of  a  prior  lien,  and  that  the  residue 
remains  in  the  hands  of  a  different  custodian,  an  amended  peti- 
tion setting  out  these  additional  facts,  praying  for  the  relief  orig- 
inally prayed  for,  and  also  for  appropriate  additional  relief,  does 
not  change  the  cause  of  action.2  There  is  a  decision  of  the  su- 
preme court  which  apparently  goes  further  than  the  decision  by 
the  court  of  appeals  just  cited.  In  that  case,  which  was  an  action 
of  ejectment,  the  plaintiff  was  permitted  to  file  an  amended  peti- 
tion containing  two  counts,  the  first  of  which  set  out  the  plaint- 
iff's title  and  other  matters  of  equity,  and  prayed  for  equitable 
relief,  viz.,  that  two  deeds  through  which  defendant  claimed  title 
should  be  set  aside ;  the  second  count  was  a  count  in  ejectment, 
the  same  as  in  the  original  petition.  It  was  held  that  the 
amended  petition  did  not  set  up  a  new  or  different  cause  of  ac- 
tion, and  that  the  amendment  was  properly  allowed.3 

§  970.  When  a  change  of  parties  effects  a  change  in  the 
cause  of  action.— In  considering  the  question  how  far  a  change 
of  parties  is  allowable,  and  whether  or  not  parties  may  be  added, 
dropped  or  substituted,  the  question  whether  a  change  of  par- 
ties effects  a  change  in  the  cause  of  action  has  been  incident- 
ally discussed.4  Some  decisions  are  here  added  to  those  above, 
the  following  being  a  case  in  which  the  point  is  directly  passed 
upon :  The  action  was  brought  by  "  B.  F.  C,  agent  of  the  Good- 
speed  Publishing  Company,'"'  and  leave  was  asked  to  strike  out 
the  name  of  B.  F.  C.  and  insert  in  lieu  thereof  the  names  of  C.  L. 
Goodspeed  and  W.  A.  Goodspeed,  for  the  reason  that  they  con- 
stituted the  Goodspeed  Publishing  Company.     The  motion  to 

1  Phillips  v.  Broughton,  30  App.  148.        3  Morrison  v.  Herrington,  120  Mo.  665. 

2  Pratt  v.  Walther,  42  App.  491.  4See  ch.  XLI. 


496  AMENDING    TLEADINGS.  [§  971. 

amend  was  properly  refused.1  "Where,  in  an  action  in  ejectment, 
the  petition  is  amended  by  causing  it  to  state  that  both  husband 
and  wife  were  entitled  to  the  possession,  instead  of  the  wife 
alone,  the  cause  of  action  is  not  changed.2  It  seems,  however, 
that  this  rule  is  not  to  be  carried  so  far  as  to  substitute  the  wife 
for  the  husband  as  the  real  party  in  interest.  If  an  action  to  re- 
cover money  belonging  to  the  wife  is  instituted  in  the  name  of 
the  husband  alone,  the  wife  cannot  be  made  a  party  plaintiff  by 
amendment.3  Where  an  action  is  brought  on  a  special  tax-bill 
against  a  married  woman,  who  was  the  owner  of  the  property 
sought  to  be  charged,  without  joining  the  husband,  the  plaintiff 
may,  after  the  expiration  of  the  special  period  of  limitation,  amend 
by  joining  the  husband  as  a  party  for  the  purpose  of  subjecting 
the  interest  of  the  wife  in  the  land  to  the  lien  of  the  tax-bill ; 
and  a  judgment  against  her  interest  after  such  amendment  is 
proper.4  If  the  object  of  the  proceeding  is  to  reach  a  certain 
fund,  and  the  custodian  of  that  fund  is  changed  pending  the 
litigation,  the  new  custodian  may  be  brought  in  at  any  stage 
of  the  proceedings.  Bringing  in  the  party  in  whose  hands  the 
fund  is,  for  the  purpose  of  charging  the  fund,  is  not  in  any  sense 
a  change  of  the  original  cause  of  action.5 

§  971.  Plaintiff  filed  a  petition  and  an  amended  petition 
against  school  district  number  4,  township  22,  range  9,  and  three 
individuals  who  were  the  directors  of  the  district.  He  after- 
wards filed  a  second  amended  petition  making  the  three  direct- 
ors sole  defendants,  the  last  petition  containing  substantially  the 
same  allegations  as  the  original  petition,  but  praying  judgment 
against  the  individual  defendants  only.  It  was  held  that  this 
last  petition  was  a  substitution  of  a  new  cause  of  action.6  But 
a  change  in  the  name  of  the  plaintiff  from  "  Agency  Village 
School  District  No.  3  "  to  that  of  "  School  District  of  the  Inhab- 
itants of  the  Village  of  Agency  "  is  not  the  substitution  of  a  new 
party,  and  does  not  change  the  cause  of  action.7  Where  the 
whole  context  of  the  original  petition  warrants  the  conclusion 

1  Clements  v.  Greenwell,  40  App.  preme  court  in  a  mechanics'  lien  suit. 
589.  Latshaw  v.  McNees,  50  Mo.  381.    That 

2  Hughes  v.  McDivitt,  102  Mo.  77.  case  also  holds  that  the  defect  of 
In  that  case  both  the  husband  and  parties  is  not  cured  by  the  statute  of 
wife    were    originally    made  parties  jeofails. 

plaintiff.  5  Pratt  v.  Walther,  42  App.  491. 

3  Courtney  v.  Sheehy,  38  App.  290.  6  Hall  v.  School  District,  36  App.  21. 
♦Smith  v.  Boese,  39  App.  15.     The        7 School  District  v.  Wallace, 75  App. 

same   rule  is  announced  by  the  su-    317. 


§  972.]  MUST   NOT   CHANGE    CAUSE   OF   ACTION.  497 

that  the  suit  was  one  by  a  school  district  as  a  corporation,  and 
that  the  allusion  in  the  petition  to  the  directors  was  mere  sur- 
plusage, the  mere  addition  of  a  word  to  the  corporate  name  is 
not  such  a  total  change  of  the  party  plaintiff  as  to  constitute  a 
departure  from  the  original  petition.1  For  rectifying  a  mistake 
in  the  name  of  a  part}'"  does  not  work  a  change  in  the  cause  of 
action.2  If  the  title  of  the  cause  is  amended  by  setting  out  the 
individual  names  of  the  partners  in  place  of  the  firm  name,  there 
is  no  change  in  the  cause  of  action.3  An  action  was  brought  by 
a  married  woman  to  recover  for  the  death  of  her  minor  child. 
Plaintiff  had  been  divorced  from  her  husband,  and  he  was  still 
living  but  at  the  time  of  instituting;  the  action  his  consent  to  be 
joined  as  plaintiff  had  not  been  obtained,  and  he  was  accord- 
ingly made  a  defendant.  After  the  filing  of  the  petition,  and 
more  than  a  year  after  the  cause  of  action  accrued,  plaintiff  was 
allowed  to  amend  her  petition  by  changing  the  husband  from 
defendant  to  plaintiff  so  that  the  action  should  stand  in  the  names 
of  the  parents  jointly.  The  supreme  court  approved  this  course 
on  the  ground  that  the  cause  of  action  was  not  changed,  and 
held  that  the  amendment  related  back  to  the  original  commence- 
ment of  the  action  so  as  to  save  the  bar  of  the  special  statute 
governing-  such  actions.4  But  where  in  a  similar  action  the  two 
parents  alleged  that  they  were  the  parents  of  the  child,  and  the 
relationship  was  denied  by  the  answer,  and  after  verdict,  upon 
the  hearing  of  the  motion  for  a  new  trial,  it  appeared  that  the 
child  was  born  before  the  marriage  of  the  plaintiffs,  plaintiffs 
would  not  be  permitted  to  amend  their  petition  and  verdict  by 
striking  out  the  name  of  the  male  plaintiff,  and  allow  judgment 
to  stand  in  favor  of  the  mother.5 

§  972.  Actions  arising  in  contract  and  those  arising  in  tort. 
If  the  original  petition  sets  out  an  action  ex  delicto,  an  amended 
petition  declaring  on  a  contract  is  bad.6  And  a  petition  ex  con- 
tractu cannot  be  amended  by  adding  a  count  sounding  in  tort.7 
But  it  is  held  in  Robertson  v.  Springfield  &  S.  R.  Co.s  that  the 

i  Davis  v.  Boyce,  73  App.  563.  5  Habel  v.  Union  Depot  R.  Co.,  140 

2  House  v.  Duncan,  50  Mo.  433.    And    Mo.  159. 

that  case  was  one  where  the  change  6  Drake  v.  St.  Louis  &  S.  F.  R.  Co., 

was  made  in  the  circuit  court  after  35  App.  553. 

an  appeal  from  a  justice.  7  O'Riley  v.  Diss,  48  App.  62. 

3  Beattie  v.  Hill,  60  Mo.  72.  8  21  App.  633. 

4  Buel  v.  St.  Louis  Transfer  Co.,  45 
Mo.  562. 

Mo.  Code  — Pu— 32 


498  AMENDING   PLEADINGS.  [§  973. 

amendment  of  a  petition  before  trial,  which  changes  the  form  of 
the  action  from  one  ex  contractu  to  one  ex  delicto,  is  proper,  if  the 
petition  still  relates  to  the  same  transaction  or  tort  as  that  em- 
braced in  the  original  petition.  An  allegation  in  an  amended 
petition  that  a  certain  overpayment  therein  averred  was  made 
by  reason  of  the  false  and  fraudulent  representations  of  defend- 
ant does  not  necessarily  change  the  cause  of  action  from  assump- 
sit for  money  had  and  received  to  an  action  ex  delicto  for  fraud 
and  deceit.1  TVhere  the  original  petition  was  in  trover  for  cer- 
tain goods,  and  the  amended  petition  charged  that  defendant 
had  maliciously  sued  out  an  attachment  and  caused  the  goods  to 
be  seized  and  sold  at  a  sacrifice,  this  was  a  new  and  distinct  cause 
of  action,  and  the  amendment  was  improper.2  In  Lumjpldn  v. 
Collier*  the  original  action  was  one  ex  contractu,  being  to  enforce 
a  bond  of  indemnity  given  to  the  sheriff  to  induce  him  to  seize 
under  execution  certain  property  which  was  claimed  by  a  third 
party,  the  plaintiff  in  the  present  action.  The  cause  of  action 
stated  in  the  amended  petition  was  in  trespass  for  seizing  and 
carrying  away  personal  property  belonging  to  plaintiff.  The 
amendment  was  held  to  be  a  change  of  the  cause  of  action. 

§  973.  Actions  ex  delicto  not  interchangeable. —  Actions  aris- 
ing ex  delicto  are  not  interchangeable  by  amendment.4  In  the 
original  petition  plaintiff  alleged  that  one  II  had  purchased 
goods  of  him  on  the  false  representation  of  his  solvency,  and 
subsequently  sold  the  goods  to  defendant,  who  received  and  paid 
for  them,  knowing  that  H  had  not  paid  plaintiff  and  that  H  was 
insolvent;  he  then  alleged  that  plaintiff  had  demanded  the  goods 
of  defendant,  who  refused  to  deliver  them  and  had  converted 
them  to  his  own  use.  At  the  trial  an  amended  petition  was  filed 
alleging  that  defendant,  knowing  that  H  was  insolvent  and  in- 
debted  to  plaintiff  for  the  goods,  fraudulently  colluded  with  II 
to  cheat  and  defraud  plaintiff,  and  in  pursuance  thereof  pre- 
tended to  purchase  the  goods  from  H.  It  was  held  that  the 
amendment  was  improper,  because  it  changed  the  cause  of  action 
from  one  in  trover  to  an  action  of  fraud  and  deceit.5  Where 
the  amended  petition  states  a  cause  of  action  for  treble  dam- 
ages for  trespass  under  the  statute,6  it  sets  out  a  different  cause 
of  action  from  that  stated  in  the  original  petition,  which  was 

>  Dobson   v.  Winner,  26  App.   329.  4  Pruett  v.  Warren,  71  App.  84 

See  also  Yeater  v.  Hines,  24  App.  619;  5  Parker  v.  Rodes,  79  Mo.  88;  Pruett 

Corrigan  v.  Brady,  38  xlpp.  649.  v.  Warren,  71  App.  84. 

2  Scovill  v.  Glassner,  79  Mo.  449.  6  Rev.  Stat.  1899,  sec.  4572. 

3  69  Mo.  170. 


§§  97-1—976.]       MUST   NOT   CHANGE    CAUSE   OF   ACTION.  499 

for  single  damages  for  the  same  trespass.1  Nor  can  an  action 
under  the  section  just  cited,  praying  for  treble  damages  for  cut- 
ting down  timber  on  plaintiff's  land,  be  changed  by  amendment 
into  an  action  of  trover  for  the  timber.2 

§  974.  Action  on  joint  and  action  on  several  contract. — 
Where  there  is  an  action  on  a  joint  contract,  and  the  amend- 
ment changes  it  to  an  action  on  a  several  contract,  there  is  an 
entire  change  in  the  cause  of  action.3 

§  975.  When  there  is  a  change  in  the  prayer  for  relief. — 
"Where  the  original  and  amended  petition  are  exactly  alike  in 
every  respect  except  as  to  the  prayer,  but  they  differ  materially 
in  that  respect,  it  does  not  follow  that  the  cause  of  action  has 
been  changed,  since  the  cause  of  action  is  determined  by  the 
facts  pleaded  and  not  by  the  relief  which  is  prayed.4  Where  in 
a  suit  to  set  aside  a  deed  the  petition  contains  a  prayer  for  gen- 
eral relief,  plaintiff  may  properly  be  permitted  to  so  amend  it 
that  it  shall  contain  a  prayer  for  a  writ  of  possession.5 

§  976.  Cases  illustrating  the  rules  as  to  changing  cause  of 
action. —  Where  the  purpose  of  the  amendment  is  merely  to  set 
out  a  correct  description  of  the  land  sued  for,  it  does  not  con- 
stitute a  change  in  the  cause  of  action;6  as,  for  instance,  where 
the  action  is  for  the  wrongful  removal  of  fences,  in  which  case 
a  correct  description  of  the  land  may  be  substituted  for  an  in- 
correct one.7  And  where  the  action  is  for  cutting  and  convert- 
ing timber  on  plaintiff's  land,  an  amendment  of  the  petition  so 
as  to  make  specific  the  lands  from  which  the  timber  was  cut  is 
permissible.8  In  Fields  v.  Moloney,9  the  petition  before  amend- 
ment sought  a  partition  of  certain  lands,  and  for  an  accounting 
as  to  the  rents  and  profits.  The  amended  petition  was  in  the 
nature  of  an  action  of  ejectment  with  a  prayer  for  rents  and 
profits,  and  damages  for  the  detention  of  the  land.  This  was 
held  to  be  the  substitution  of  a  new  cause  of  action.10  An  orig- 
inal petition  declared  on  a  trust  agreement,  which  contained 
certain  conditions,  a  compliance  with  which  must  have  been 

iHolliday  v.  Jackson,  21  App.  660.  6Calleghan  v.  McMahan,33  Mo.  111. 

2  Missouri  Lumber  &  Mining  Co.  v.  '  Sage  v.  Tucker,  51  App.  336. 

Zeitinger,  45  App.  114.  8Waverly  Timber  &  Iron  Co.  v.  St. 

'Slaughter  v.  Davenport,  151  Mo.  26.  Louis  Cooperage  Co.,  112  Mo.  383. 

*  Holt  County  v.  Cannon,  114  Mo.  514;  978  Mo.  172. 

Liese  v.  Meyer,  143  Mo.  547.  10But  see  Hughes  v.  McDivitt,  103 

s  Harlan  v.  Moore,  132  Mo.  483.    A3  Mo.  77;  Spurlock  v.  Railroad,  104  Mo. 

to  amending  prayer  after  a  default  658. 
see  §  311,  ante. 


500  AMENDING    PLEADINGS.  [§§  977-9S0. 

shown  to  sustain  the  action.  The  amended  petition  stated  a 
plain  cause  of  action  for  money  loaned  unconditionally  and  then 
due.  The  amendment  was  held  to  change  the  cause  of  action.1 
"Where,  in  an  action  upon  a  special  tax-bill,  the  tax-bill  is  held 
to  be  illegal  and  defective,  plaintiff  may  obtain  from  the  city  an 
amended  and  perfected  tax-bill,  and  then  file  an  amended  peti- 
tion declaring  on  the  tax-bill  as  amended.2 

§  977.  Same  —  In  attachment  cases. —  One  suing  by  attach- 
ment cannot  amend  his  petition  by  so  changing  the  cause  of  ac- 
tion as  to  maintain  the  attachment  against  a  plea  in  abatement; 
but  where  defendant  appears  and  files  an  answer  in  bar,  the  peti- 
tion may  be  amended  in  the  same  manner  and  for  like  reasons  as 
in  other  actions.3 

§  978.  Same  —In  mechanics'  lien  cases. —  Since  courts  should 
be  liberal  in  the  granting  of  the  right  to  amend  a  petition  in  a 
mechanic's  lien  case  in  order  to  save  the  special  limitation  govern- 
ing such  actions,4  an  amendment  of  a  petition,  made  after  the  time 
limited  for  the  bringing  of  the  suit,  which  changes  the  original 
petition  only  by  alleging  the  time  of  filing  the  lien,  and  by  cor- 
recting the  name  of  the  principal  contractor,  is  properly  allowed.5 
So  is  an  amendment  striking  out  that  part  of  the  petition  which 
describes  the  defendant  owner  as  widow  and  administratrix,  and 
which  describes  the  property,  and  which  seeks  a  lien,  leaving  the 
cause  of  action  one  for  work  done  and  materials  furnished.  Such 
amendment  does  not  constitute  a  change  of  the  cause  of  action.* 

§979.  Same  —  In  replevin  cases. —  Where  the  plaintiff  in 
replevin  fixes  the  value  of  the  property  in  his  petition,  it  is  no 
abuse  of  the  court's  discretion  to  refuse  to  allow  him  to  so  amend 
the  petition  as  to  reduce  the  value.7 

§  9S0.  Same — In  actions  against  carriers. —  Plaintiff  brought 
an  action  against  a  common  carrier  for  the  value  of  a  trunk,  which 
it  was  alleged  defendant  had  failed  to  deliver  to  plaintiff.  While 
the  suit  was  pending  the  trunk  was  delivered  to  plaintiff  in  a 
damaged  condition,  whereupon  he  amended  his  petition  so  as  to 
allege  that  fact,  and  to  claim  the  damages  accruing  from  the  in- 
jury to  the  trunk.  It  was  held  that  the  cause  of  action  was  not 
changed.8    In  another  action  against  a  carrier  for  failing  to  de- 

1  Heman  v.  Glann,  129  Mo.  32.1.  eghaffner  v.  Leahy,  21  App.  110. 

2  Galbreath  v.  Newton,  45  App.  312.  » Selking  v.  Hebel,  1  App.  340. 

3  Fordyce  v.  Hathom,  57  Mo.  120.  8  Lawrence  v.  Atchison,  T.  &  S.  F. 

4  Hannon  v.  Gibson,  14  App.  33.  R  Co.,  61  App.  62. 

5  Newman  v.  Jefferson  City,  L  &  S. 
"W.  R.  Co.,  19  App.  100. 


§  980.]  MUST   NOT    CHANGE    CAUSE   OF   ACTION.  501 

liver  goods,  the  petition  alleged  that  the  goods  were  improperly 
•delivered  to  a  connecting  carrier,  but  did  not  allege  that  the 
original  carrier  was  advised  at  the  time  the  contract  was  made 
that  the  goods  would  not  be  received  by  the  consignee  if  they 
were  shipped  through  such  connecting  carrier.     An  amended 
petition,  which  contained  this  latter  and  additional  averment, 
was  held  proper  as  not  changing  the  cause  of  action.1     In  an- 
other action  the  original  petition  averred  that  the  goods  were 
delivered  to  defendant  for  transportation  to  Santa  Anna;  that 
the  liability  of  the  defendant  was  confined  to  its  own  line ;  that 
it  negligently  failed  to  deliver  the  goods  to  a  connecting  car- 
rier, by  reason  of  which  they  did  not  reach  their  destination 
within  a  reasonable  time ;  that  plaintiff  was  therefore  compelled 
to  duplicate  the  shipment;  and  that  about  a  year  thereafter  a 
portion  of  the  goods  was  delivered  to  plaintiff  in  a  damaged 
condition,  but  the  remainder  was  wholly  lost.     The  amended 
petition  charged  an  absolute  contract  to  transport  the  goods 
from  St.  Louis  to  Santa  Anna,  and  that  the  loss  of  the  goods 
was  attributable  to  the  negligence  of  the  defendant,  instead  of 
to  that  of  the  connecting  carrier.     The  amended  petition  was 
held  not  to  change  the  cause  of  action.2    An  original  petition 
alleged  that  plaintiff  had  been  compelled  to  pay  $83  to  dis- 
charge a  lien  for  warehouse  and  elevator  charges  on  goods  which 
had  been  shipped  over  defendant's  line,  and  that  he  had  been 
subjected  to  these  charges  by  reason  of  defendant's  negligence. 
By  an  amendment,  plaintiff  charged  that  he  had  been  compelled 
to  pay  $63  for  warehouse  and  elevator  charges,  and  $20  addi- 
tional freight,  all  made  necessary  by  defendant's  delay  in  deliver- 
ing the  goods.     It  was  held  that  this  amendment  did  not  change 
the  cause  of  action,  since  both  the  original  and  amended  state- 
ments were  based  upon  the  breach  of  defendant's  undertaking 
safely  and  without  unnecessary  delay  to  transport  and  deliver  the 
goods  to  its  connecting  carrier,  with  directions  similar  to  those 
contained  in  the  way-bill  on  which  the  goods  were  shipped.3     A 
petition  contained  two  counts,  one  in  equity  to  reform  portions  of 
the  contract  of  shipment  as  having  been  agreed  to  by  mistake, 
and  the  other  for  damages.    There  was  a  trial  of  the  equity  count, 
but  it  was  dismissed  before  submission.     Plaintiff  then  filed  an 

1  Chandler  Commission  Co.  v.  Nash-        2  Schwab  Clothing  Co.  v.  St.  Louis, 
ville,  C.  &  St.  L.  R.  Co.,  64  App.  144    I.  M.  &  S.  R.  Co.,  71  App.  241. 

3  Hall  v.  Wabash  R.  Co.,  80  App.  463. 


502  AMENDING    PLEADINGS.  [§§  981-9S3. 

amended  petition  which  was  practically  the  second  count  of  the 
original  petition,  and  this  course  was  held  to  be  proper.1 

§  981.  Same  —  In  actions  against  railroad  companies.—  In 

an  action  against  a  railroad  company  for  death,  the  original  pe- 
tition stated  that  defendant  recklessly,  carelessly  and  negligently 
caused  one  of  its  trains  to  strike,  wound  and  kill  the  deceased. 
The  amended  petition,  which  was  tiled  after  the  expiration  of 
the  statutory  time,  charged  that  the  deceased  was  struck  and 
killed  by  the  negligence  and  unskilfulness  of  defendant's  em- 
ployees while  running  the  train.  It  was  held  that  the  amend- 
ment set  up  no  new  cause  of  action.2  In  an  action  against  a 
railroad  company  for  injury  to  live-stock,  the  statement  orig- 
inally filed  alleged  that  the  injury  was  caused  by  a  failure  of 
the  company  to  erect  and  maintain  cattle-guards.  The  amended 
statement  charged  the  same  injury,  but  alleged  that  it  occurred 
in  consequence  of  the  failure  of  the  company  to  construct  a  cross- 
ing where  its  road  crossed  a  public  highwray,  and  it  was  held 
that  the  amended  petition  did  not  change  the  cause  of  action.3 

§  ?,§2.  Same  —  Action  by  employee. —  In  an  action  for  per- 
sonal injuries  received  by  an  employee,  the  petition  charged  that 
the  machinery  by  which  plaintiff  was  injured  was  operated  by 
defendant  both  as  a  hot  water  and  steam  heater  and  drier,  while 
it  was  constructed  for,  and  intended  to  be  used  only  as,  a  steam 
heater  and  drier.     The  petition  was  amended  by  charging  that 
the  change  from  a  steam  heater  and  drier  to  both  a  steam  heater 
and  drier  and  a  hot-water  heater  and  drier  was  a  deceptive 
change.    It  was  held  that  this  did  not  change  the  cause  of  action.* 
§  883.  Introducing  matter  occurring  after  suit  brought.— 
Section  618 5  provides  that  an  answer  or  replication  may  allege 
facts  which  have  occurred  since  the  institution  of  the  suit.    Sec- 
tion 603 5  further  provides  that  a  party  may  be  allowed  on  mo- 
tion to  file  an  amended  or  supplemental  petition,  answer  or 
reply,  alleging  facts  material  to  the  cause,  or  praying  for  any 
other  or  different  relief,  order  or  judgment.     These  provisions 
recognize  the  right  to  bring  before  the  court  by  amendment  mat- 
ters arising  after  the  filing  of  the  petition,  where  they  simply 
enlarge  the  extent  of  the  relief  asked,  as  by  alleging  a  continu- 
ance of  the  same  wrong.6   But,  whatever  may  be  the  rule  in  suits 

1  Bowring  v.  Wabash  R  Co.,  77  App.  4  Glover  v.  American  Hominy  Flakes 

250.  Co.,  76  App.  103. 

^  Moody  v.  Pacific  R.  Co.,  68  Mo.  470.  5  Rev.  Stat.  1899. 

3  Lincoln  v.  St.  Louis,  L  M.  &  S.  R  6  Ward  v.  Davidson,  89  Mo.  445. 
Co.,  75  Mo.  27. 


§  983.]  MUST   NOT    CHANGE   CAUSE   OF   ACTION.  503 

in  equity,  in  actions  at  law  the  cause  of  action  must  be  complete 
at  the  date  of  its  institution,  and  filing  an  amended  petition  does 
not  open  up  to  plaintiff  a  cause  of  action  which  accrued  after  the 
original  petition  was  filed ;  such  an  amended  petition  can  operate 
only  as  a  restatement  in  different  language  or  in  a  more  complete 
manner  of  a  cause  of  action  which  existed  at  the  beginning.1  Still, 
a  party,  whether  plaintiff  or  defendant,  may  by  a  supplemental 
pleading  (and  this  means  by  an  amended  pleading  complete  in 
itself)  introduce  facts  which  have  transpired  since  the  suit  was 
brought,  which  go  to  strengthen  the  cause  of  action  or  the  de- 
fense.2 If  the  cause  of  action  is  complete  when  the  suit  is  brought 
(as  it  must  be),  the  amended  petition  may  state  such  additional 
acts  of  non-performance  of  the  conditions  of  the  contract  as  tend 
to  increase  the  damages,  though  such  acts  have  occurred  between 
the  commencement  of  the  suit  and  the  filing  of  such  amended 
petition.  The  other  and  additional  actionable  facts  which  may 
be  embraced  in  such  amended  or  supplementary  petition  must  be 
of  the  same  kind,  must  belong  to  the  same  group,  and  must  be 
connate  to  those  constituting  the  cause  of  action  stated  in  the 
original  petition.3  So,  in  a  proceeding  between  tenants  in  com- 
mon to  obtain  an  accounting,  in  which  the  petition  charges  the 
defendant  with  committing  acts  of  waste,  the  petition  may  be 
amended  so  as  to  include  a  continuation  of  the  acts  constituting 
waste  after  the  date  of  the  filing  of  the  original  petition,  whether 
the  proceeding  be  an  action  at  law  or  a  suit  in  equity.4  In  an 
action  of  ejectment  the  petition  may  be  amended  by  adding  a 
count  asking  for  the  cancellation  of  certain  deeds  to  defendant 
of  the  land  in  suit.5  A  petition  may  be  amended  so  as  to  make 
it  correspond  with  changes  which  have  occurred  since  the  com- 
mencement of  the  suit;  and  new  parties,  who  have  since  that 
date  become  interested  in  the  property  involved  in  the  litigation, 
may  be  brought  in.6 

1  Davis  v.  Clark,  40  App.  515.  5  Morrison  v.  Herrington,  120  Mo.  665. 

2  Nave  v.  Adams,  107  Mo.  414;  Alfter        «Reyburn  v.  Mitchell,  106  Mo.  365. 
v.  Haminitt,  54  App.  303.  See  §  311,  ante;  also  the  case  cited  in 

3  Alfter  v.  Hammitt,  54  App.  303.         §  969,  note  2.    The  reader  should  also 
*  Childs  v.  Railroad,  117  Mo.  414.  consult  §§  627,  671  and  767. 


CHAPTER  XLIII. 

THE  STAGE  OF  THE  PROCEEDINGS  AT  WHICH  AN  AMENDMENT 
MAY  BE  ALLOWED. 


984  The  statutory  provisions. 

985.  Amendments  as  of  course. 

986.  After  publication. 

9S7.  After  demurrer  or  motion  sus- 
tained. 

988.  After  a  change  of  venue. 

989.  AtthetriaL 

990.  Allowance  at  the  trial  is  dis- 

cretionary. 

991.  Applications  of  the  rule. 

992.  Amending  the  answer  at  the 

trial. 

993.  Amending  after  the  evidence 

is  all  in. 
995.  Same  —  Abandoned  pleading 
cannot  be  amended. 


§  996.  Same  —  Amending  answer  or 

reply. 
997.  Same  —  Cases  illustrating  the 

rules. 
999.  Same  —  Dividing  petition  into 

counts. 

1000.  Amending  after  the  argument 

is  closed. 

1001.  After  verdict  or  judgment. 

1002.  Same  —  When  amendment  is 

not  allowable. 

1003.  Same  —  Pleading     to     the 

amendment. 

1004.  Amending  after  the  dissolu- 

tion of  an  injunction. 


§  984,  The  statutory  provisions. —  Our  statute  is  not  only 
liberal  in  the  matter  of  amendments,  but  it  is  equally  liberal  as 
to  the  time  when  they  may  be  made,  only  providing  that  they 
shall  not  be  made  under  such  circumstances  as  would  work  a 
prejudice  to  the  opposite  party.  Section  657 l  provides  for  amend- 
ments before  final  judgment.  It  permits  the  court,  at  any  time  be- 
fore final  judgment,  in  furtherance  of  justice  and  on  such  terms  as 
may  be  proper,  to  amend  any  record,  pleading,  process,  entry, 
return  or  other  proceeding,  by  adding  or  striking  out  the  name 
of  any  party,  or  by  correcting  a  mistake  in  the  name  of  a  party, 
or  a  mistake  in  any  other  respect,  or  by  inserting  other  allega- 
tions material  to  the  case,  or,  if  the  amendment  does  not  change 
substantially  the  claim  or  defense,  by  conforming  the  pleading 
or  proceeding  to  the  facts  proved.  Section  660 l  provides  for 
amendments  even  after  final  judgment.  It  permits  the  court 
after  the  final  judgment,  in  furtherance  of  justice  and  on  such 
terms  as  may  be  just,  to  amend  in  affirmance  of  such  judgment 
any  record,  pleading,  process,  etc.,  by  adding  or  striking  out  the 


iRev.  Stat.  1899. 


§  984.]  STAGE    AT    WHICH    AMENDMENTS    MAY    BE    ALLOWED.         505 

name  of  a  party,  or  by  correcting  a  mistake  in  the  name  of  a 
party  or  in  any  other  respect,  or  by  rectifying  defects  or  imper- 
fections in  matters  of  form.  Furthermore,  section  659 x  provides 
that  the  court  shall  in  every  stage  of  the  proceeding  disregard 
any  error  or  defect  in  the  pleading  or  proceedings  which  shall 
not  affect  the  substantial  rights  of  the  adverse  party.  If  there 
is  a  variance  between  the  pleading  and  the  proof,  and  such  vari- 
ance is  not  material,  the  court  may  direct  the  facts  to  be  found 
according  to  the .  evidence,  or  may  order  an  immediate  amend- 
ment without  costs.2  Under  section  60S,3  if  a  complete  deter- 
mination of  the  controversy  cannot  be  had  without  the  presence 
of  other  parties,  the  court  may  order  them  to  be  brought  in  by 
an  amendment  to  the  petition,  or  by  a  supplemental  petition  and 
a  new  summons.  Section  661 3  provides  that  the  petition  or  the 
answer  may  be  amended  of  course,  without  costs  and  without 
prejudice  to  the  proceeding  already  had,  at  any  time  before  the 
answer  or  reply  is  filed;  and  section  662 3  allows  a  reply  to  be 
amended  upon  such  terms  as  may  be  just  at  any  time  before  the 
jury  is  sworn  or  the  cause  is  submitted  to  the  court.  By  section 
663 3  a  party  is  permitted  to  file  an  amended  or  supplemental 
pleading  alleging  facts  material  to  the  cause  or  praying  for  any 
other  or  different  relief,  order  or  judgment.  Under  sections  6Q± 
and  665 3  the  plaintiff  may,  at  any  time  before  the  jury  is  sworn 
or  the  cause  is  submitted  to  the  court,  strike  out  or  withdraw 
any  part  of  his  petition;  and  no  objection  to  such  action  shall  be 
valid  that  would  not  be  valid  after  a  finding  of  the  issue  for  the 
plaintiff.  Section  668 3  provides  for  an  opportunity  to  the  ad- 
verse party  to  answer  or  reply  to  any  amended  pleading.  By 
the  provisions  of  section  6T3,3  any  omissions,  imperfections,  de- 
fects or  variances  enumerated  in  the  statute  of  jeofails,4  and  all 
others  of  a  like  nature,  not  being  against  the  right  and  justice 
of  the  matter,  and  not  altering  the  issues  between  the  parties, 
shall  be  supplied  and  amended  by  the  court  where  the  judgment 
is  given,  or  by  the  appellate  court.  Finally  it  is  provided  that 
courts  shall  so  construe  the  provisions  of  law  relating  to  plead- 
ing, and  so  adapt  the  practice  thereunder,  as  to  discourage  as  far 
as  possible  negligence  and  deceit,  to  prevent  delay,  to  secure  par- 
ties from  being  misled,  to  place  the  party  not  in  fault  as  nearly 
as  possible  in  the  same  condition  he  would  be  in  if  no  mistake 
had  been  made,  to  distinguish  between  form  and  substance,  and 

1  Rev.  Stat.  1899.  3  Rev.  stat  1899. 

2  Rev.  Stat  1899,  sec.  656.  <Rev.  Stat  1899,  sec.  672. 


AMENDING    PLEADINGS.  [§§  985-987. 

to  afford  known,  fixed  and  certain  requisites  in  place  of  the  dis- 
cretion of  the  court  or  judge.1  All  these  statutory  provisions  are 
by  section  675a  made  to  apply  to  suits  by  the  state,  to  actions 
for  penalties,  to  writs  of  mandamus,  prohibition,  quo  warranto 
and  scire  facias;  they  do  not  extend  to  criminal  proceedings. 

§  985.  Amendments  as  of  course. —  A  petition  or  answer  may 
be  amended  of  course  without  costs,  and  without  prejudice  to  the 
proceeding  already  had,  at  any  time  before  the  answer  or  reply 
thereto  is" filed.3  And  a  reply  may  be  amended  upon  such  terms 
as  may  be  just  at  any  time  before  the  jury  is  sworn  or  the  cause 
submitted  to  the  court.4  At  that  stage  of  the  case  a  defendant 
may  amend  his  answer  by  interposing  for  the  first  time  the  stat- 
ute of  limitations.5  Section  662 6  has  not  been  so  interpreted  as 
to  prohibit  the  court  from  allowing  a  reply  to  be  amended  during 
the  trial,  since  section  65 Y6  provides  that  the  court  may  at  any 
time  before  final  judgment  amend  any  pleading,  or  cause  the 
pleading  to  be  so  amended,  as  to  conform  to  the  facts  proved.7 
It  was  held  by  the  supreme  court  prior  to  the  adoption  of  the 
Code,  that  the  plaintiff  might  amend  by  changing  his  surname 
from  Bizet  to  Boisse,  and  then  take  judgment  by  default.8  It  is 
safe  to  assume  that  an  equal  liberality  would  be  shown  under  the 
Code. 

§  986.  After  publication. —  A  petition  cannot  be  amended 
after  publication,  where  there  has  been  no  personal  appearance 
of  the  defendant.9 

§987.  After  demurrer  or  motion  sustained. —  A  pleading 
may  always  be  amended  after  a  demurrer  to  it  has  been  sustained, 
or  the  whole  or  some  part  of  it  has  been  stricken  out  on  motion, 
or  it  has  been  otherwise  successfully  attacked.10  The  only  limit 
to  this  rule  is  that,  if  a  third  successive  pleading  has  been  by  the 
court  adjudged  insufficient,  the  party  is  not  permitted  to  file  any 
further  pleading,  but  judgment  must  be  rendered  as  though  no 
pleading  had  been  filed  by  him.11     While  there  may  be  a  ques- 

1  Rev.  Stat.  1899,  sec.  676.  8  Boisse  v.  Langham,  1  Mo.  572. 

2  Rev.  Stat.  1899.  9Janney  v.   Spedden,  38  Mo.   396; 

3  Rev.  Stat  1899,  sec.  661.  Leavenworth  Terminal  R.  &  B.  Co.  v. 
*  Rev.  Stat.  1899,  sec.  662;  Bradley  v.  Atchison,  137  Mo.  218. 

Phoenix  Ins.  Co.,  28  App.  7;  Morrison  J0Rev.  Stat.  1899,  sees.  621-623. 

v.  Herrington,  120  Mo.  665.  «  Rev.  Stat.  1899,  sec.  623;  Beardslee 

5  Bradley  v.  Phoenix  Ins.  Co.,  28  v.  Morgner,  73  Mo.  22 ;  Spurlock  v.  Mo. 
App.  7.  Pac.  R,  Co.,  93  Mo.  13,  93  Ma  530;  Bar- 

6  Rev.  Stat.  1899.  ton  v.  Martin,  54  App.  134. 

7  Sheehan  Trans.  Co.  v.  Sims,  36  App. 
224. 


§§  9S8-9.]        STAGE  AT  WHICH  AMENDMENTS  MAT  EE  ALLOWED.        507 

tion  whether  a  plea  in  abatement  in  an  attachment  suit  may  be 
amended  in  substance  after  a  demurrer  to  it  is  sustained,  a  cler- 
ical error  in  it  may  certainly  be  amended ;  as,  for  instance,  by  in- 
serting the  word  "  not."1  Where  a  plea  in  abatement  is  interposed 
on  the  ground  that  a  corporation  is  sued  by  a  wrong  name,  plaint- 
iff may  be  permitted  to  amend  both  the  petition  and  the  summons 
by  inserting  the  correct  name,  defendant  being  entitled  to  its 
costs.2 

§  988.  After  a  change  of  venue.— "Where  a  change  of  venue 
has  been  granted,  and  the  cause  has  been  transferred  to  the  court 
to  which  it  was  ordered  removed,  an  amendment  of  the  petition 
may  be  made  in  that  court.3  This  rule  has  recently  been  carried 
to  a  great  length  in  Fears  v.  Riley}  The  court  to  which  the 
cause  was  taken  on  change  of  venue,  which  change  was  granted 
on  the  application  of  defendant,  permitted  plaintiff  to  amend  his 
petition  by  increasing  the  amount  asked  for,  and  by  bringing  in 
new  defendants  who  resided  in  other  counties,  and  to  bring  in 
such  other  defendants  by  new  process.  It  furthermore  permitted 
plaintiff,  after  such  amendment  had  been  made  and  process  had 
been  served  upon  the  new  defendants,  to  dismiss  the  petition  as 
to  the  original  defendant  who  resided  in  the  county  where  the 
suit  was  originally  brought.  And  the  supreme  court  held  that 
tbe  lower  court  had  the  power  to  do  all  these  things. 

§  989.  At  the  trial. —  "Where  parties  have  made  up  the  issues 
by  their  pleadings,  and  gone  to  trial,  and  introduced  evidence  in 
support  of  them,  the  issues  can  be  changed  only  by  amending  the 
pleadings,  and  this  is  ordinarily  done  on  terms.5  Amendments 
are  allowed  at  the  trial  in  order  to  conform  the  petition  to  the 
proof,  and  to  avoid  a  nonsuit  on  account  of  a  variance,  if  the 
amendment  does  not  change  the  cause  of  action.6  If  defendant 
is  not  ready  to  meet  the  case  as  amended,  his  remedy  is  by  an 
application  for  a  continuance.7     Plaintiff  may  amend  at  the  trial 

iCayce  v.  Ragsdale,  17  Mo.  32.  Mo.  77;  Spurlock  v.  Mo.  Pac.  R  Co., 

2  Green  v.  Supreme  Lodge,  79  App.     104  Mo.  658. 
179.    The  court  does  not  particularize        4 148  Mo.  49. 

in  its  opinion  the  costs  to  which  the  de-  5  Mays   v.   Pryce,  95  Mo.  603.    See 

fendant  is  entitled,  but  presumably  it  §  1011,  post. 

intended  to  include  all  costs  which  6  Butcher  v.  Death,  15  Mo.  271;  Mc- 

liad  accrued  prior  to  the  making  of  Murry  v.  Martin,  26  App.  437;  Cole- 

the  amendment.     See  §  1011,  post.  man  v.  Drane,  116  Mo.  387. 

3  Stearns  v.  St.  Louis  &  S.  F.  R.  Co.,  "McMurry  v.  Martin,  26  App.  437; 
94  Mo.  317;  Hughes  v.  McDivitt,  102  Pence  v.  Gabbert,  70  App.  201.     See 

§  1008,  post. 


508  AMENDING   PLEADINGS.  [§§  990,  991. 

by  s  I  bing  out  the  items  that  go  to  make  up  his  claim  for  special 
damages  without  changing  his  cause  of  action.1  If  after  a  depo- 
sition has  been  put  on  file,  but  before  it  has  been  offered  in  evi- 
dence, plaintiff  asks  leave  to  amend  his  petition  to  make  it 
conform  with  the  testimony  contained  in  the  deposition,  the 
amendment  should  be  allowed.2  Even  after  a  party  wishing  to 
take  advantage  of  a  variance  has  claimed  a  surprise,  and  shown 
by  his  affidavit  the  grounds  of  the  surprise,  the  court  may  well 
allow  the  other  party  to  amend.8  The  adding  or  the  substitu- 
tion of  a  party  is  allowable  at  the  trial.4 

§  990.  Allowance  at  the  trial  is  discretionary. —  The  allow- 
ance of  amendments  at  the  trial  is  within  the  sound  discretion  of 
the  court;5  especially  where  the  amendment  is  merely  formal, 
and  does  not  substantially  change  the  cause  of  action.6 

§991.  Applications  of  the  rnle. —  Where  a  promissory  note 
sued  on  varied  from  the  one  recited  in  the  petition  by  the  omis- 
sion from  the  petition  of  the  word  "  pay,"  an  amendment  of  the 
petition  was  properly  permitted  at  the  trial.7  So,  too,  the  words 
"and  harness"  may  be  added,  where  they  have  evidently  been 
omitted  by  oversight.8  If  in  the  caption  of  a  petition  the  sign 
"  &  "  is  by  mistake  introduced  between  the  christian  and  surname 
of  a  part}T,  so  as  to  make  it  read  as  though  it  were  a  firm,  the 
"  &  "  may  be  summarily  stricken  out.9  "Where  the  instrument 
sued  on  is  designated  as  a  lease,  but  it  appears  on  the  trial  to  be 
merely  a  mining  license,  and  it  appears  further  that  defendant 
was  fully  apprised  of  the  contents  of  the  instrument,  plaintiff 
may  be  permitted  to  amend  at  the  trial.  "  The  cause  of  action 
proved,"  says  the  court,  "  is  essentially  the  one  stated,  namely, 
the  breach  of  the  covenant  in  a  deed.  The  deed  is  sufficiently 
identified,  and  the  only  objection  to  the  petition  is  that  it  gives 
the  deed  a  wrong  name.  The  covenant  broken  is  in  the  deed 
produced."  Therefore  such  an  amendment  does  not  change  the 
cause  of  action.10     In  an  action  upon  a  promissory  note,  where,  to 

i  Pence  v.  Gabbert,  70  App.  201.  35  Mo.  452;  Roberts  v.  Lynch,  15  App. 

2Waverly  Timber  &  Iron  Co.  v.  St.  456;  Hixon  v.  Selders,  46  App.  275. 
Louis  Cooperage  Co.,  112  Mo.  383.  6  Glasscock  v.  Glasscock,  8  Mo.  577; 

3  Brown  v.  Kansas  City,  St.  J.  &  C.  State  ex  rel.  v.  Gage,  52  App.  464.  See 
B.  R.  Co.,  20  App.  427.  also  §  992  et  seq.,  post. 

4  Tayon  v.  Ladew,  33  Mo.  205;  Well-        7  Atwood  v.  Gillespie,  4  Mo.  423. 
man  v.  Dismukes,  42  Mo.  101.  SHuffer  v.  Riley,  47  App.  479. 

5  Greene  v.  Gallagher,  35  Mo.  226;        9Hite  v.  Hunton,  20  Ma  286. 
Ferguson  v.  Hannibal  &  St.  J.  R.  Co.,       10  Boone  v.  Stover,  66  Mo.  430,  436. 


§  992.]  STAGE   AT   WHICH    AMENDMENTS    MAY    BE    ALLOWED.  509 

avoid  the  bar  of  the  statute  of  limitations,  plaintiff  alleges  a  pay- 
ment made  by  the  defendant  within  ten  years,  and  the  evidence 
shows  that  the  payment  was  made  by  a  co-maker  of  the  defend- 
ant, the  petition  may  be  amended  at  the  trial  to  make  it  conform 
to  the  evidence.1  By  a  contract  entered  into  between  the  parties 
defendant  agreed  to  sell  plaintiff  certain  real  estate  for  which 
plaintiff  paid  $500  down.  As  a  part  of  the  agreement  defend- 
ant was  to  deliver  to  plaintiff  a  complete  abstract  of  title 
within  ten  days.  Defendant  failing  to  furnish  the  abstract, 
plaintiff  sued  to  recover  the  $500  paid,  alleging  that  time  was 
of  the  essence  of  the  contract.  Upon  the  trial  it  appeared  that 
the  provision  as  to  time  being  of  the  essence  of  the  contract 
appeared  in  a  duplicate  of  the  contract  retained  by  the  plaintiff, 
but  was,  without  plaintiff's  knowledge,  erased  in  the  copy  re- 
tained by  defendant,  and  that  therefore  the  minds  of  the  parties 
did  not  meet,  and  there  was  no  agreement,  though  the  money 
had  been  paid  and  received  under  the  belief  that  there  was  a  con- 
tract. It  was  held  that  the  court  properly  permitted  plaintiff  to 
amend  his  petition  at  the  trial  to  conform  to  this  state  of  facts, 
since  the  amendment  is  not  a  substantial  change  of  the  original 
cause  of  action,  which  was  in  itself  a  form  of  the  action  for 
money  had  and  received.2 

§  992.  Amending  the  auswer  at  the  trial. —  The  defendant 
may  in  a  proper  case  be  permitted  to  file  an  amended  answer  at 
the  trial ;  but  this  is  within  the  discretion  of  the  court.3  If  the 
evidence  discloses  a  defense  not  set  up  in  the  answer,  defendant 
may  be  allowed  to  amend  his  answer  so  as  to  make  it  conform 
to  the  evidence,  provided  the  defense  is  not  substantially  changed.4 
But  he  cannot  amend  by  denying  facts  which  he  admitted  in  his 
original  answer.5  Nor  is  the  court  bound  to  permit  an  amend- 
ment of  an  answer  after  the  trial  is  begun,  if  it  substantially 
changes  the  defense.6  And  the  court  cannot  be  said  to  have 
abused  its  discretion  in  refusing  to  allow  defendant  to  amend  his 
answer  by  stating  facts  which  were  known  to  him  when  the  orig- 
inal answer  was  filed  and  which  would  change  the  character  of 
his  defense,  where  such  amendment  is  asked  after  the  filing  of 

i  Bennett  v.  McCanse,  65  Ma  194.  *  Irwin  v.  Chiles,  28  Mo.  576;  Garton 

2  Corrigan  v.  Brady,  38  App.  649.  See,    v.  Cannada,  39  Mo.  357. 

for  further  illustrations,  §  997,  post  5  Harrison  v.  Hastings,  28  Mo.  346. 

a  "Weed  Sewing  Machine  Co.  v.  Phil-        6  Corby  v.  Wright,  4  App.  443;  Clark 

brick,  70  Mo.  676.  v.  St.  Louis  Transfer  Co.,  127  Mo.  225. 

See  Joyce  v.  Growney,  154  Mo.  253. 


510  AMENDING   PLEADINGS.  [§§  903-995. 

the  report  of  the  referee,  and  after  defendant's  exceptions  to  such 
report  have  been  overruled.1  An  amendment  withdrawing  a  de- 
fense  is  permissible  at  any  time,  though  its  effect  be  to  give  the 
defendant  the  opening  and  closing.2 

^  \YX\.  Amending  after  the  evidence  is  all  in. —  It  is  no  abuse 
of  the  court's  discretion  to  permit  an  amendment  of  the  petition 
after  the  evidence  is  all  in,  where  the  cause  is  continued  and  de- 
fendant has  the  opportunity  to  answer,  and  the  case  is  retried 
at  the  next  term.3  If  a  state  of  facts  not  set  forth  in  the  plead- 
ings is  developed  at  the  trial  the  pleadings  should  be  amended.4 
And  the  amendment  may  be  allowed  even  after  the  instructions 
have  been  given  to  the  jury.5  In  fact,  if  the  evidence  shows  a 
different  state  of  facts  from  those  set  forth  in  the  pleading,  and 
the  party  desires  an  instruction  in  accordance  with  those  facts, 
he  must  first  amend  his  pleading  so  as  to  make  it  conform  to  the 
proofs.6  If  plaintiff  fails  to  prove  the  allegations  of  his  petition, 
but  does  prove  facts  which  entitle  him  to  recover,  he  should  bo 
allowed  to  amend  his  petition,7  that  he  may  have  such  relief  as 
the  proof  shows  he  is  entitled  to.8  A  refusal  to  allow  such  an 
amendment  is  reversible  error.9  If  defendant  omits  to  show 
by  affidavit  wherein  he  was  misled  or  prejudiced  by  the  amend- 
ment, he  is  in  no  situation  to  complain  of  it.10  If  the  action  is  on 
an  account,  an  item  which  is  developed  by  the  proof  may  be 
added  to  the  account.11  An  amendment  of  the  caption  of  a  peti- 
tion may  be  made  after  the  evidence  is  in.la 

§  994.  In  courts  of  chancery  it  is  the  invariable  practice  to 
allow  the  amendment  of  the  bill  after  evidence  is  taken,  so  as  to 
make  it  conform  to  the  proof,  and  to  bring  in  such  new  parties 
as  are  essential  to  a  complete  determination  of  the  matters  in 
controversy.13 

§995.  Same  —  Abandoned  pleading  cannot  be  amended. — 
The  doctrines  stated  above  are  not  to  be  extended  so  as  to  cover 
a  pleading,  or  a  part  of  a  pleading,  which  has  been  abandoned. 
While  an  amendment  of  a  pleading  upon  which  the  parties  have 
gone  to  trial  is  properly  allowable  at  the  close  of  the  case,  it  is 

1  Singer  Mfg.  Co.  v.  Givens,  35  A  pp.  1  Barclay  v.  Bates,  2  App.  139;  How- 
602.    See  also  §  996,  post.  ard  v.  Shirley,  75  App.  150. 

2  Boatmen's  Sav.  Inst.  v.  Forbes,  52  »  Collins  v.  Glass,  46  App.  297. 
Mo.  201.  9  Carr  v.  Moss,  87  Mo.  447. 

3Dameron  v.  Jamison,  4  App.  299.  1(lWetzell  V.  Wagoner,  41  App.  509. 

4  Newman  v.  Kenton,  79  Mo.  382.  "  Sprague  v.  Follett,  90  Mo.  547. 

5  Hanson  v.  Jones,  20  App.  595.  12  State  v.  Sandusky,  46  Mo.  377. 

6  Budd  v.  Hoffheimer,  52  Mo.  297.  "  Pratt  v.  Walther,  42  App.  491. 


§§  996,  997.]     STAGE  AT  WHICH  AMENDMENTS  MAY  BE  ALLOWED.      511 

not  to  be  permitted  as  to  a  pleading  which  has  been  abandoned, 
stricken  out,  or  otherwise  ruled  out  of  consideration.1  In  a  case 
illustrating  this  rule,  the  petition  contained  four  counts.  At  the 
beginning  of  the  trial  defendant  objected  to  any  evidence  under 
either  count,  on  the  ground  that  neither  count  stated  a  cause  of 
action,  which  objection  was  sustained  as  to  the  first  and  fourth 
counts.  Thereupon  the  case  was  tried  upon  the  second  and 
third  counts.  At  the  close  of  plaintiff's  evidence  the  court  per- 
mitted him  to  amend  the  first  count,  and  plaintiff  recovered  a 
verdict  on  that  count  alone.  It  was  held  that  the  action  of  the 
court  was  erroneous.2  But  where  plaintiff  has  obtained  judg- 
ment on  the  first  count  of  a  petition,  and  the  judgment  is  re- 
versed in  the  appellate  court  on  account  of  error  pertaining  to  a 
subsequent  count,  plaintiff  may,  upon  the  remanding  of  the  cause, 
amend  his  first  count  so  as  to  claim  a  recovery  of  a  larger  amount 
than  he  claimed  in  the  original  first  count.3 

§  996.  Same  —  Amending  answer  or  reply. —  An  answer  can- 
not be  amended  after  trial  and  submission  to  the  court,  so  as  to  in- 
troduce new  matter  of  defense.4  Nor  should  an  amendment  of  the 
answer  be  allowed  after  the  evidence  is  in,  if  there  is  no  evidence 
to  support  the  amendment.5  Plaintiff  may  be  permitted  to  file  a 
reply  to  the  answer  after  he  has  rested  his  case  on  the  evidence.6 

§  997.  Same  — Cases  illustrating  the  rules.— After  the  evi- 
dence is  all  in  the  court  may  properly  permit  the  petition  to  be 
so  amended  as  to  set  out  the  proper  corporate  name  of  the  de- 
fendant.7 Where  the  suit  was  to  set  aside  a  settlement  inter 
partes,  and  to  recover  a  balance  which  had  been  erroneously 
paid,  the  defendant  relied  in  his  answer  on  a  settlement  which 
was  made  prior  to  the  one  assailed  in  the  petition.  It  developed 
at  the  trial  that  the  error  complained  of  originated  in  this  for- 
mer settlement,  and  plaintiff  asked  leave  at  the  close  of  the  case 
to  amend  his  petition  by  setting  up  the  former  settlement  and 
charging  fraud  and  mistake  in  its  procurement,  and  leave  to 
make  such  amendment  was  properly  granted.8  Where  the  peti- 
tion alleged  that  certain  real  estate  was  paid  for  in  cash,  but  the 
evidence  showed  that  it  was  paid  for  by  the  conveyance  of  other 
real  estate,  the  plaintiff  may  amend  his  petition  so  as  to  make  it 

i  Cash  v.  Penix,  11  App.  597.  5Saare  v.  Union  R.  Co.,  20  App.  211. 

2Renfro  v.  Price,  22  App.  403.  6  Collins  v.  Glass,  46  App.  297.     See 

3  Weber  v.  Squier,  51  App.  601.  also  §  992,  ante. 

*  Irwin  v.  Chiles,  28  Mo.  576;  Garton  7  Meyer  v.  Insurance  Co.,  73  App.  166. 

v.  Cannada,  39  Mo.  357.  swelday  v.  Jones,  79  Mo.  170. 


512  AMENDING    TLEADINGS.  [§§998-1000. 

conform  to  the  facts.1  In  an  action  to  recover  a  money  judg- 
ment and  to  enforce  a  mechanic's  lien,  the  answer  averred  that 
the  sum  sued  for  was  not  due  at  the  date  of  filing  the  answer, 
nor  on  the  6th  of  January,  1872,  though  the  suit  was  not  com- 
menced  until  January  14,  1ST2.  On  a  second  trial  of  the  case, 
after  the  evidence  was  all  in,  defendant  asked  leave  to  amend  by 
averring  that  the  sum  was  not  due  when  the  action  was  com- 
menced, and  leave  to  file  such  amendment  was,  under  the  circum- 
stances, properly  refused.2 

§  90s.  A  bill  in  equity  was  filed  by  a  married  woman  against 
her  husband  and  certain  of  his  children  to  cancel  certain  deeds 
made  by  the  husband  to  the  two  children  in  fraud  of  plaintiff's 
rights.  The  allegations  were  that  under  the  marriage  agree- 
ment the  husband  was  to  convey  certain  property  to  the  wife; 
that  he  did  deliver  to  the  wife  a  deed  purporting  to  carry  out 
the  agreement,  but  which  did  not  convey  to  her  a  fee-simple 
title;  that  afterwards  he  voluntarily  and  without  consideration 
conveyed  the  same  land  to  his  children,  for  the  purpose  of  pre- 
venting plaintiff  from  obtaining  her  rights  in  the  matter.  Upon 
the  trial  it  developed  that  the  husband  had  made  a  second  deed 
to  his  wife  correcting  the  defects  of  the  first  deed,  but  the  wife 
still  claimed  that  in  the  interim  between  the  execution  of  the 
two  deeds  the  husband  had  conveyed  the  property  to  his  chil- 
dren, as  alleged  in  the  petition.  At  the  trial,  and  after  these 
facts  had  been  brought  out  by  the  evidence,  the  trial  court  per- 
mitted plaintiff  to  amend  her  petition  by  setting  up  the  fact  that 
the  two  deeds  had  been  executed  by  the  husband  to  her.  The 
supreme  court  held  this  to  be  proper,  inasmuch  as  the  gist  of  the 
action  wTas  that,  when  the  conveyance  was  made  to  the  children, 
the  fee-simple  title  did  not  appear  to  be  in  the  wife,  and  there- 
fore the  amendment  merely  conformed  to  the  proof,  and  did  not 
change  the  cause  of  action.3 

§  999.  Same  —  Dividing  petition  into  counts. —  In  an  action 
against  a  railroad  company  for  killing  stock,  where  two  causes 
of  action  are  blended  in  a  single  count,  plaintiff  may  at  the  close 
of  the  evidence  amend  his  petition  so  as  to  specify  in  separate 
counts  the  precise  dates  when  the  respective  injuries  occurred.4 

§  1000.  Amending  after  the  argument  is  closed. —  It  is  proper 
to  permit  the  plaintiff,  after  the  evidence  is  all  in  and  the  argu- 

i  Kerr  v.  Bell,  44  Mo.  120.  *  Sinclair  v.  Mo.,  K.  &  T.  R  Co.,  70 

2  Simmons  v.  Carrier,  68  Mo.  416.  App.  588. 

s  Harlan  v.  Moore,  132  Mo.  483. 


§  1001.]        STAGE   AT   WHICH    AMENDMENTS   MAT   BE   ALLOWED.       513 

ment  of  counsel  has  been  made,  to  amend  his  petition  so  as  to 
make  it  conform  to  the  proofs.1 

§  1001.  After  verdict  or  judgment. —  A  petition  may  be 
amended  after  the  entry  of  the  judgment  to  rectify  a  formal  de- 
fect which  might  have  been  cured  by  amendment  before  or  dur- 
ing the  trial.2  Where,  in  an  action  of  ejectment,  the  petition 
erroneously  uses  the  word  "  east "  instead  of  "  west "  in  describ- 
ing the  land,  the  court  may  at  the  next  term,  the  motion  for  a 
new  trial  having  been  continued,  permit  an  amendment  of  the 
petition,  and  may  correct  the  verdict  to  conform  to  the  new  pe- 
tition.8 And  even  after  defendant's  motion  for  a  new  trial  in 
such  an  action  has  been  overruled,  the  court  may  permit  the  ad 
damnum  clause  of  the  petition  to  be  amended  to  conform  to  the 
proof,  though  it  increases  the  plaintiff's  claim  for  damages  from 
$100  to  $500.*  In  an  action  for  a  breach  of  covenant  the  plaint- 
iff claimed  damages  as  the  immediate  effect  of  his  eviction  as 
covenantee,  but  upon  the  trial  it  appeared  by  evidence  which 
was  received  without  objection  that  the  eviction  was  suffered 
by  the  covenantee  of  plaintiff,  and  that  plaintiff  had  indemnified 
him,  so  that  plaintiff's  real  claim  was  to  be  reimbursed  by  his 
covenantor  for  this  outlay ;  both  sides  treated  the  damages  so 
sustained  as  within  the  scope  of  the  petition,  and  plaintiff's  re- 
covery did  not  exceed  the  amount  which  he  paid  his  covenantee. 
It  was  held  that  in  such  a  case  the  court  might  properly  permit 
an  amendment  of  the  petition  even  after  judgment.5  In  an  ac- 
tion upon  an  insurance  policy  it  is  essential  that  the  petition 
should  contain  an  allegation  of  plaintiff's  ownership  of  the  prop- 
erty at  the  time  of  the  loss.  If,  however,  the  petition  does  not 
contain  such  an  allegation,  but  the  case  is  tried  as  if  the  fact  of 
ownership  was  in  issue,  the  petition  may,  after  a  verdict  in  plaint- 
iff's favor,  be  amended  by  adding  the  allegation,  since  such 
amendment  does  not  alter  the  issue.6  Where  a  party  has  no  in- 
terest in  the  suit,  is  neither  a  necessary  nor  a  proper  party,  but 
through  inadvertence  he  has  been  made  a  plaintiff,  it  is  not  error 
to  permit  an  amendment  of  the  petition  by  striking  out  his  name, 

i  Blair  v.  C.  &  A.  R.  Co.,  89  Mo.  383;  3  Acton  v.  Dooley,  16  App.  441. 

Conn.  Mut.  Life  Ins.  Co.  v.  Smith,  117  *  McClannahan  v.  Smith,  76  Mo.  428. 

Mo.  261.  *  Jones  v.  Whitsett,  79  Ma  188.    See, 

2  Rev.  Stat.  1889,  sees.  660, 673;  Lamb  in  this  connection,  §  311,  ante. 

v.  St.  Louis,  C.  &  W.  R.  Co.,  33  App.  6Cagle  v.  Chillicothe  Mut.  F.  Ins. 

489.  Co.,  78  App.  43L 
Mo.  Code  Pl.—  33 


514  AMENDING   PLEADINGS.  [§§  1002,  1003. 

even  after  judgment;  and  his  name  may  also  be  stricken  out  of 
the  judgment  itself.1 
§  1002.  Same  —  When  amendment  is  not  allowable. —  The 

statute  of  jeofails 2  is  intended  to  cure  all  defects  of  form,  and  to 
permit  the  correction  of  many  errors  of  substance.  Nevertheless 
it  does  not  authorize  an  amendment  of  plaintiff's  case,  nor  of  the 
defendant's  defense,  into  a  shape  not  supported  by  the  evidence 
at  the  trial,  where  such  change  would  prejudicially  affect  the 
rights  of  defendant.3  Thus  in  an  action  founded  on  the  death  of 
a  minor  child,  the  two  plaintiffs  alleged  that  they  were  his  par- 
ents, and  a  verdict  was  rendered  in  their  favor,  though  the  rela- 
tionship was  denied  by  the  answer.  It  appeared  on  the  motion 
for  new  trial  that  the  child  was  born  before  the  marriage  of 
plaintiffs,  and  thereupon  the  court  granted  leave  to  the  female 
plaintiff  to  amend  the  petition  and  verdict  by  striking  out  the 
name  of  the  father,  and  then  allowed  the  judgment  to  stand  in 
favor  of  the  mother  for  the  full  amount  of  the  verdict.  It  was 
held  that  such  an  amendment  was  not  permissible.4  A  bill  in 
equity  was  filed  by  a  judgment  creditor  of  one  of  the  defend- 
ants to  have  certain  chattel  mortgages  executed  by  such  defend- 
ant to  his  co-defendant  declared  fraudulent  and  void,  and  to 
compel  the  co-defendant  to  account  k>  plaintiff  for  the  proceeds 
realized  from  such  mortgages.  Aftes  the  decree  was  entered 
plaintiff  sought  to  amend  his  petition  in  order  to  show  that  the 
mortgages  in  question  and  an  assignment  which  was  made  by 
the  mortgagor  for  the  benefit  of  his  creditors  were  all  part  of 
one  transaction,  and  that,  therefore,  the  preference  attempted  to 
be  given  by  the  mortgages  was  in  contravention  of  the  assign- 
ment laws  of  the  state.  It  being  evident  that  the  original  peti- 
tion was  not  drawn  on  any  such  theory,  because  if  it  had  been  the 
assignee  in  the  deed  for  the  benefit  of  creditors  would  have  been 
not  only  a  proper  but  a  necessary  party,  the  court  properly  re- 
fused permission  to  make  the  amendment.5 

§  1003.  Same  —  Pleading  to  the  amendment. —  Where  a  de- 
fendant, three  days  after  the  entry  of  final  judgment,  asked  per- 

i  Powell  v.  Banks,  146  Mo.  620.  5  Farwell  v.  Meyer,  67  App.  566. 

2  Rev.  Stat  1899,  sec.  672.    See  §  886,  That  the  petition  cannot  be  amended 
ante.  in  substance  after  a  default,  see  Ter- 

3  Farwell    v.   Meyer,   67   App.   566;  minal  Ry.  Co.  v.  Atchison,  137  Mo.  218, 
Saare  v.  Union  R.  Co.,  20  App.  211.  230. 

4  Habel  v.  Union  Depot  R.  Co.,  140 
Mo.  159. 


§  1004.]        STAGE    AT   ■WHICH    AMENDMENTS   MAT   BE   ALLOWED.        515 

mission  to  file  an  amended  answer  to  an  amended  petition,  the 
court  did  not  abuse  its  discretion  in  refusing  the  permission,  al- 
though the  amended  petition  was  not  filed  until  the  time  of  enter- 
ing the  judgment,  the  amendment  being  merely  for  the  purpose 
of  conforming  the  petition  to  the  facts  proved.1 

§  1004.  Amending  after  the  dissolution  of  an  injunction. — 
A  proposed  amendment  of  a  petition  to  conform  to  the  proofs  is 
properly  refused  if  not  offered  until  after  the  dissolution  of  an 
injunction.2 

1  Conn.  Mut  Life  Ins.  Co.  v.  Smith,  the  judgment  is  first  set  aside.    Mur- 

117  Mo.  261.    It  has  also  been  held  that  phy  v.  De  France,  23  App.  337. 

a  supplemental  answer  cannot  in  any  2  Cabanne  v.  Spaulding,  14  App.  312. 
case  be  filed  after  judgment,  unless 


CHAPTER  XLIV. 


EFFECT  OF  AMENDING  -  TERMS. 


§  1005.  Effect  of  amending. 

1006.  Notice  of  amendment. 

1007.  Effect  on  statute    of  limita- 

tions. 

1008.  "Working  continuance. 


§  1009.  Effect  of  failing  to  amend. 

1010.  Pleading  to  amended  plead- 

ing. 

1011.  The  court  may  impose  terms. 


§  1005.  Effect  of  amending. —  An  amended  petition  is  only  a 
continuance  of  the  original  proceeding;  it  is  not  the  commence- 
ment of  a  new  action,1  and  the  original  and  amended  petitions 
do  not  constitute  two  separate  and  distinct  actions.2  When  the 
pleading  is  amended  by  the  tiling  of  a  new  pleading,  the  func- 
tions of  the  former  pleading  are  at  an  end.3  The  party  abandons 
the  original  pleading  and  all  matters  alleged  in  it.4  But  any  ad- 
missions contained  in  the  former  pleading  are  competent  evi- 
dence against  the  party  who  filed  it.5 

§  1006.  Notice  of  amendment. —  Defendants  who  are  prop- 
erly in  court  must  take  notice  of  any  amendment  of  the  petition, 
and  need  not  be  again  served  with  process.6  But  under  section 
638,7  if  a  party  files  any  amended  or  supplemental  pleading  in 
vacation,  he  must  give  to  the  adverse  party  or  his  attorney  a 
written  notice  of  the  time  of  filing  it;  and  until  such  notice  is 
duly  served  the  adverse  party  is  not  deemed  to  have  notice  of 
its  filing  for  the  purpose  of  pleading.8 

§  1007.  Effect  on  statute  of  limitations. —  An  amendment 
which  introduces  a  cause  of  action  barred  by  limitation  is  in- 


1  Mann  v.  Schroer,  50  Mo.  306.  See 
next  section. 

2  Soulard  v.  St.  Louis,  40  Mo.  144. 

3  Woolfolk  v.  Woolfolk,  33  Mo.  110; 
Ticknor  v.  Voorhies,  46  Mo.  110;  Breck- 
enkamp  v.  Reese,  3  App.  585;  Owens, 
Lane  &  Dyer  Machine  Co.  v.  Pierce,  5 
App  576;  Corley  v.  McKeag,  9  App.  38. 

4  Ticknor  v.  Voorhies,  46  Mo.  110. 

5  Anderson  v.  McPike,  86  Mo.  293; 
Murphy  v.  St.  Louis  Type  Foundry,  29 
App.  541. 


6  St.  Louis  v.  Gleason,  15  App.  25; 
McLaughlin  v.  Schawacker,  31  App. 
365. 

7  Rev.  Stat.  1899. 

8  Many  of  the  courts  have  adopted 
a  rule  that  a  copy  of  the  amended 
pleading  must  be  served  upon  the  op- 
posite party;  and  until  the  opposite 
party  has  received  such  copy  he  is  not 
bound  to  plead  to  the  amendment. 

As  to  effect  of  taking  leave  to 
amend,  see  §  937,  ante. 


§  1007.]  EFFECTS   OF   AMENDING.  517 

effectual  to  avoid  the  statutory  bar.     The  rule  is  that  where  the 
amendment  sets  up  no  new  matter  or  claim,  but  is  a  mere  varia- 
tion of  the  allegations  affecting  a  demand  already  in  issue,  then 
the  amendment  relates  to  the  commencement  of  the  suit,  and  the 
running  of  the  statute  is  arrested  at  that  point;  but  where  the 
amendment  introduces  a  new  claim  not  before  asserted,  then  it 
is  not  treated  as  relating  to  the  commencement  of  the  suit,  but 
is  equivalent  to  a  fresh  suit  upon  a  new  cause  of  action,  and  the 
running  of  the  statute  continues  down  to  the  time  of  filing  the 
amended  petition.1     In  the  case  last  cited  plaintiff  shipped  over 
defendant's  railroad  a  carload  of  sheep  under  a  written  contract, 
one  provision  of  which  was  that  in  case  of  total  loss  the  sum  of 
§100  per  head  should  be  taken  as  liquidated  damages.     In  his 
original  petition  plaintiff  set  out  the  contract  in  general  terms, 
without  mentioning  the  clause  as  to  liquidated  damages,  and 
prayed  for  general  damages.    In  his  amended  petition  he  set  out 
this  part  of  the  contract  and  claimed  damages  under  it  for  such 
of  the  sheep  as  were  killed  ($100  per  head  being  largely  in  ex- 
cess of  the  actual  market  value  of  the  sheep),  and  the  damages 
actually  suffered  for  such  sheep  as  were  injured.     It  was  held 
that,  while  the  cause  of  action  stated  in  both  petitions  was  for 
breach  of  the  contract,  yet  as  the  claim  for  liquidated  damages 
was  a  claim  beyond  that  asserted  in  the  original  petition,  it  was, 
for  the  purpose  of  the  statute,  a  new  cause  of  action.   But  where 
the  amendment  to  the  petition  merely  brings  a  second  deed  of 
trust  into  view  for  the  purpose  of  foreclosure,  the  statute  of  lim- 
itations does  not  operate  to  bar  the  proceeding  to  foreclose  under 
the  first  deed  of  trust,  that  proceeding  having  been  begun  within 
ten  years  after  the  maturity  of  the  debt,  although  the  amend- 
ment was  not  made  for  sixteen  years  after  the  debt  matured.2 
Where,  in  an  action  at  law  for  slander,  the  reply  set  up  an  equi- 
table defense,  as  to  which  the  statutory  time  had  not  then  ex- 
pired, but  which  under  the  rulings  of  the  court  was  afterwards 
embodied  as  a  separate  count  in  an  amended  petition,  such  de- 
fense is  not  barred  by  the  statute,  although  the  statutory  time 
had  expired  when  the  amended  petition  was  filed,  since  the 
amendment  did  not  interject  into  the  cause  a  new  claim  which 
had  not  before  been  asserted.3   Where  a  petition  in  an  action  for 
trespass  is  amended  so  as  to  make  it  state  a  cause  of  action  for 

iBuel  v.  St.  Louis  Transfer  Co.,  45        aLong  v.  Long,  141  Mo.  352. 
Mo.  562;  Baker  v.  Mo.  Pac.  R.  Co.,  34       3  Courtney  v.  Blackwell,  150  Mo.  245. 
App.98. 


518  AMENDING   TLEADINGS.  [§§  1008-1010. 

treble  damages  for  the  trespass,  it  will  not  authorize  proof  of  a 
trespass  which  had  been  committed  more  than  three  years  prior 
to  the  time  of  filing  the  amended  petition.1 

§  1G08.  Working  continuance. —  When  a  party  amends  any 
pleading,  and  the  court  is  satisfied,  by  affidavit  or  otherwise,  that 
the  opposite  party  cannot  be  ready  for  trial  in  consequence  of  the 
amendment,  a  continuance  may  be  granted  to  some  day  of  the 
same  term  or  to  the  next  regular  term  of  the  court.2  The  filing 
of  an  amended  petition  does  not  of  itself  entitle  the  defendant  to 
a  continuance.3  If  a  party  feels  that  he  has  been  prejudiced  by 
a  permission  to  his  opponent  to  amend  during  the  trial,  he  must 
file  an  affidavit  to  that  effect  and  ask  for  a  continuance.4  And 
if  he  is  surprised  by  the  amendment,  he  is  entitled  to  a  continu- 
ance at  the  cost  of  the  adverse  party.5  A  mere  formal  amend- 
ment does  not  afford  ground  for  a  continuance.6  Nor  should  a 
coutinuance  be  granted  where  the  amendment  could  not  work  a 
surprise.7  If  the  opposite  party  neglects  to  move  for  a  continu- 
ance, he  waives  the  objection  that  the  amendment  has  worked  a 
surprise  on  him.8 

§  1009.  Effect  of  failing  to  amend.— Where  the  petition  is 
formally  defective,  and  may  be  amended,  the  defect  is  neverthe- 
less fatal  if  the  plaintiff  fails  to  amend.9 

§  1010.  Pleading  to  amended  pleading.— If  any  amendment 
is  made  to  any  pleading,  the  adverse  party  must  be  allowed  an 
opportunity,  according  to  the  course  and  practice  of  the  court,  to 
answer  or  reply  to  the  pleading  so  amended.10  Where  at  the 
trial  plaintiff  is  permitted  to  insert  a  material  averment  in  his 
petition  by  way  of  amendment,  and  such  averment  is  unanswered 
by  the  defendant,  it  is  to  be  taken  as  admitted ;  but  if  the  an- 
swer already  filed  contains  a  defense  to  the  petition  with  its 

i  Holliday  v.  Jackson,  21  App.  660.  -  Rev.  Stat.  1899,  sec.  688. 

That  amendments  are  often  allowed  3Colhoun  v-  Crawford,  50  Mo.  458: 

for  the  express  purpose  of  saving  the  Keltenbaugh  v.  St.  Louis,  A.  &  T.  R. 

bar  of  the  statute  is  shown  in  §  943,  Co.,  34  App.  147. 

ante.  *McMurry  v.  Martin,  26  App.  437; 

Since  courts  take  judicial  notice  of  Hiemenz  v.  Goerger,  51  App.  586. 

all  matters    of  record  in  the  same  5  Fischer  v.  Max,  49  Mo.  404. 

cause,  it  is  unnecessary  to  set  out  in  6  State  ex  rel.  v.  Gage,  52  App.  464. 

an  amended  petition  the  date  of  filing  7  Pifer  v.  Stanley,  57  App.  516. 

the  original  petition,  nor  to  allege  that  8  Kuh  v.  Garvin,  125  Mo.  547. 

the  original  petition  was  begun  within  9  Elf  rank  v.  Seiler,  54  Mo.  134.    But 

the  statutory  period.    Barth  v.  Kansas  see  §  951,  ante. 

City  Elev.  R.  Co.,  142  Mo.  535.  w  Rev.  Stat.  1899,  sec.  668. 


§  1011.]  TERMS.  519 

additional  averment,  the  case  should  proceed  to  trial  just  as 
though  the  averment  had  been  in  the  petition  at  first,  and  was 
unanswered.1  If  the  defendant  files  an  answer  to  an  amended 
petition  which  changes  the  cause  of  action,  and  then  goes  to 
trial  on  the  merits,  he  cannot,  after  a  new  trial  has  been  awarded, 
object  to  another  amended  petition  on  the  ground  of  its  being 
a  departure  from  the  petition  first  filed.2  Where  the  petition 
was  amended  by  leave  of  court  after  the  evidence  was  all  in  and 
before  final  judgment,  the  court  properly  refused  to  permit  de- 
fendant to  answer  such  amended  petition  three  days  after  the 
entry  of  final  judgment.3 

§  1011.  The  court  may  impose  terms. —  Article  VI  of  the 
Code4  confers  upon  the  courts  ample  authority  to  impose  upon 
a  party  desiring  to  amend  his  pleading  such  terms  as  may  be 
just;  and  amendments  should  only  be  allowed  on  terms  which 
are  not  prejudicial  to  the  other  party.5  The  power  of  the  court 
to  impose  costs  on  the  party  seeking  a  radical  amendment  of  his 
pleading  has  always  been  recognized.6  The  party  making  the 
amendment  may  be  properly  required  to  pay  all  the  costs  which 
have  accrued  from  the  commencement  of  the  suit  down  to  the 
time  of  making  the  amendment.7  If  the  variance  between  the 
allegation  and  the  proof  is  not  material,  and  the  adverse  party 
could  not  have  been  misled  to  his  prejudice,  an  amendment  may 
be  allowed  without  costs.8 

i  Robards  v.  Munson,  20  Mo.  65.  481;  Waverly  T.  &  L  Co.  v.  St.  Louis 

2  Spurlock  v.  Mo.  Pao.  R.  Co.,  104  Mo.  Cooperage  Co.,  112  Mo.  383;  Tower  v. 
65a  Pauly,  67  App.  632.    See  also  §  989, 

3  Conn.  Mut  Life  Ins.  Co.  v.  Smith,  ante. 

117  Mo.  261.  6  Tower  v.  Pauly,  67  App.  632. 

4  Rev.  Stat.  1899,  ch.  8.  7  Street  v.  Bushnel,  24  Mo.  328. 
s  Archer  v.  Merchants'  Ins.  Co.,  43        8  Riddles  v.  Aiken,  29  Mo.  453. 

Mo.  434;  Turner  v.  Chillicothe  &  D.  M.  When  the  allowance  of  an  amend- 
R.  Co.,  51  Mo.  501;  Gaty  v.  Sack,  19  ment  will  work  a  continuance  is 
App.  470;  Stewart  v.  Glenn,  58  Mo.    shown  in  §  1008,  ante. 


INDEX. 


[The  references  are  to  the  sections.] 

ABANDONED  PLEADINGS,  regarded  as  never  made,  784 

by  amendment,  1005. 

not  amendable,  940,  980,  995. 
ABATEMENT,  of  action  by  another  action  pending,  746-748. 

For  plea  in  abatement,  see  Plea  m  Abatement. 
ACCEPTANCE,  of  bill,  alleging,  355. 

conditional,  alleging,  355. 
ACCIDENT  POLICY,  action  upon,  296,  396. 
ACCORD  AND  SATISFACTION,  pleading,  695. 
reply  to,  757. 

plea  of,  is  new  matter,  757. 

defective  plea  of,  898. 
ACCOUNT,  setting  forth  in  pleading,  497. 

or  annexed  to  it,  803. 

failing  to  set  forth,  849. 

how  the  defect  is  reached,  853. 

filed  with  petition  is  a  part  of  the  record,  506. 

amending  petition  by  setting  out  items,  989. 
ACCOUNT  STATED,  action  on,  80. 

petition  on,  339. 

answer  in,  718. 
ACCOUNTING,  bill  for,  191,  340, 481,  489. 

when  allowed  under  general  prayer,  310. 

in  an  action  for  fraud,  225. 

in  answer  to  action  of  ejectment,  726. 

for  acts  of  waste  committed  after  suit  brought,  983. 

as  to  realty  and  personalty  joined,  257. 

between  partners,  departure  in  reply,  778. 
ACTION,  only  one  form,  263. 

right  to,  must  be  complete  at  date  of  institution,  983. 

amended  petition,  continuance  of  original  proceeding,  1005. 

obviating  circuity  of,  15  et  seq. 

upon  bond,  amending  petition,  969. 

brought  by  a  cestui  que  trust,  trustee  may  be  added,  954. 

joining  causes,  214  et  seq. 
(See  Causes  of  Action.) 

ex  contractu  and  ex  delicto,  when  may  be  joined,  222,  876. 

at  law,  alleging  matters  of  equitable  cognizance  in,  280. 
when  changed  into  equitable  proceeding,  773. 


522  INDEX. 

ACTION,  continued. 

equitable  defenses  to,  26-28. 

when  triable  as  suit  in  equity,  9,  10. 

statutory,  alleging  time,  293. 

based  upon  statute  or  ordinance,  effect  of  general  denial,  573. 

on  lost  instrument,  498. 

brought  in  wrong  county,  736. 

abated  by  another  action  pending,  746-748. 

another  pending,  demurrer  for,  826. 
See  also  Cause  of  Action. 
AD  DAMNUM,  not  necessary  to  plead  in  petition,  272. 

clause  amended,  1001. 
ADEQUATE  REMEDY  AT  LAW,  pleading,  141,  484. 

what  petition  must  show,  240. 

petition  must  negative,  576. 

showing,  under  general  denial,  576. 

objection  raised  by  demurrer,  833. 
ADMINISTRATOR,  putting  appointment  in  issue  by  general  denial,  567. 

bond  of,  action  on,  443. 

amending  petition  in,  969. 

action  against,  for  waste,  480. 

bill  to  set  aside  settlement  of,  483. 
ADMISSION,  by  pleadings,  185,  542. 

by  demurrer,  818. 

by  amended  pleading,  1005,  1010. 

by  filing  motion,  795. 
ADMISSIONS  BY  PLEADING,  statutory  provisions,  18& 

direct,  200. 

indirect,  205. 

by  negative  pregnant,  206,  207,  543-545. 

by  amended  pleading,  1005. 

unanswered  amended  pleading,  1010. 

confession  and  avoidance,  195. 

admitting  value,  189. 

where  averment  is  unnecessary,  198. 

successive  answers,  196. 

answer  by  one  of  several  defendants,  197. 

in  one  part  of  answer  runs  through  whole,  200. 

where  the  pleading  is  withdrawn,  786. 

binding  representative,  199. 

rules  do  not  apply  to  motions,  212. 

illustrations  of,  190  et  seq.,  208-211. 
AFFIDAVIT,  to  pleadings,  42-44. 

to  denial  of  incorporation,  693. 

to  denial  of  partnership,  694 
AFFIRMATIVE  MATTER,  negativing  in  counter-claim,  675. 

negativing  in  petition,  293. 
AFFIRMATIVE  RELIEF,  to  action  of  ejectment,  28  et  seq. 

one  defendant  against  another,  30. 
AGENCY,  what  may  be  shown  under  a  general  denial,  584 
AGENT,  instrument  executed  by,  685,  690. 


THE   REFERENCES   AEE   TO   THE    SECTIONS.  523 

AGGRAVATION,  matters  of,  not  a  part  of  the  cause  of  action,  270. 

of  damages,  see  Damages. 
AGREED  STATEMENT,  cures  defects  in  the  petition,  791. 

amending  pleadings,  941. 

ALIENATING  AFFECTIONS,  pleading  in  action  for,  137. 

ALLEGATA  AND  PROBATA,  must  correspond,  23a 
See  Pleading  and  Proof;  Variance. 

ALLEGATIONS,  must  be  certain,  38. 
must  be  consistent,  39,  73. 
all  need  not  be  proved,  97. 
proving  negative,  103. 

such  only  to  be  pleaded  as  must  be  proved,  108. 
not  required  to  be  proved,  should  not  be  pleaded,  60. 
unnecessary,  97-101,  278,  279. 
unnecessary,  when  they  become  essential,  282. 

ALTERATION,  may  be  shown  under  general  denial,  585. 

ALTERNATIVE  PLEADING,  what  is  meant  by  it,  70. 

ALTERNATIVE  RELIEF,  when  granted,  25. 

AMENDED  LAW,  pleading,  168. 

AMENDED  PETITION,  not  a  new  action,  955,  1005. 

stating  different  cause  of  action  not  demurrable,  794. 

changing  the  cause  of  action,  waiver  of  objection,  872. 

going  to  trial  on,  waiver  by,  872. 

petition  cannot  be  amended  by  a  reply,  763. 

unanswered,  is  admitted,  1010. 

where  action  is  dismissed  as  to  one  of  two  defendants  whose  demurrer 

has  been  sustained,  948. 
showing  facts  occurring  after  suit  brought,  267. 
in  equitable  cause,  767. 

AMENDED  PLEADING,  takes  place  of  former  pleading,  785. 
original  pleading  admissible  in  evidence,  785. 
setting  up  facts  subsequently  occurring,  767. 
pleading  to,  524,  1003,  1010. 
waiver  by  pleading  to,  872. 
when  considered  as  not  filed,  787. 
cases  where  the  issues  are  not  changed,  943. 
waiver  of  defects  by,  806. 
rules  for,  935. 

what  will  support  an  amendment,  940. 
successive  amendments,  939. 
how  many  amendments  are  allowed,  845,  952. 
taking  leave  to  amend,  937. 
where  amendment  is  not  actually  made,  951. 
amendment  treated  as  made,  951. 
amendments  should  be  liberally  allowed,  942. 
allowance  discretionary,  934. 
allowance  at  trial  discretionary,  990. 
when  leave  to  amend  may  be  refused,  936. 
party  must  specify  amendment,  936. 


524:  INDEX. 

AMENDED  PLEADING,  continued, 

when  party  may  be  compelled  to  amend,  946-948. 

upon  cause  being  remanded,  947. 
effect  of  failure  to  amend,  1009. 
allowing  time  for,  930. 
allowing  time  to  plead  to,  938. 
at  what  stage  allowed,  935,  984. 
amendments  as  of  course,  985. 
amending  petition  before  answer  is  filed,  985. 

answer  before  reply  is  filed,  985. 

reply  before  jury  sworn,  985. 

after  publication,  986. 

after  demurrer  or  motion  sustained,  987. 

at  the  trial,  989. 
amending  reply  during  trial,  985. 
amending  after  the  evidence  is  all  in,  993. 
after  instructions  have  been  given,  993. 
after  argument  is  closed,  1000. 
after  verdict  or  judgment,  1001. 

what  amendments  are  not  allowable  after  verdict  or  judgment,  10021 
after  change  of  venue,  988. 
after  dissolution  of  injunction,  1004 
guarding  rights  of  adverse  party,  938. 
court  may  impose  terms,  942,  989, 1011. 
without  costs,  985,  1011. 
court  may  impose  costs,  1011. 
when  adverse  party  is  entitled  to  costs,  987. 
when  adverse  party  is  surprised  by  amendment,  940. 
effect  of  surprise,  1008. 
showing  surprise  by,  989,  993. 
effect  of  amending,  1004. 
functions  of  former  pleading  at  an  end,  1005. 
when  it  works  continuance,  989,  1008. 
cannot  cure  defective  process,  945. 
cannot  give  jurisdiction,  945. 
effect  on  statute  of  limitations,  1007. 
amending  and  then  taking  judgment  by  default,  985. 
amending  caption  of  petition,  991. 
amending  answer,  996. 
answer  at  trial,  992. 
withdrawing  defense,  992. 
amending  reply,  996. 
ad  damnum  clause,  1001. 

amendment  merely  formal,  for  purpose  of  joining  husband,  950. 
by  dividing  petition  into  counts,  999. 
correcting  trivial  errors,  991. 
by  correcting  clerical  errors,  987. 
by  correcting  name,  987. 

by  changing  name  does  not  make  the  suit  a  new  one,  955. 
for  the  purpose  of  correcting  description,  976,  1001. 
abandoned  pleading  cannot  be  amended,  940,  995. 
count  which  has  been  dismissed  cannot  be,  940. 
to  save  from  bar  of  limitation,  942,  943,  971. 


THE   REFERENCES   ARE   TO   THE    SECTIONS. 


525 


AMENDED  PLEADING,  continued. 

to  avoid  a  nonsuit  on  account  of  variance,  989. 

correcting  description,  976,  1001. 

where  cause  is  submitted  on  agreed  statement,  941, 

in  attachment  cases,  977. 

in  actions  against  carriers,  980. 

in  action  for  breach  of  covenant,  1001. 

in  action  by  employee,  982. 

in  mechanics'  lien  cases,  978. 

in  actions  against  railroad  companies,  981. 

in  replevin  cases,  954,  979. 

action  against  married  woman  on  special  tax-bill,  970. 

petition  based  on  amended  tax-bill,  976. 

amendment  must  not  change  cause  of  action,  964. 

what  constitutes  a  change  of  the  cause  of  action,  965,  966. 

changing  action  from  legal  to  equitable,  969. 

substituting  one  equitable  proceeding  for  another,  969. 

action  of  ejectment  by  adding  count  in  equity,  969,  976,  983. 

test  of  change  of  cause  of  action,  967,  968. 

question  of  change  must  be  determined  from  face  of  pleadings,  966. 

when  change  of  parties  is  change  of  cause,  970. 

changing  cause  of  action  by  substituting  plaintiff,  958. 

action  on  joint  to  one  on  several  contract,  974. 

actions  in  contract  and  in  tort,  973. 

actions  ex  delicto  not  interchangeable,  973. 

changing  partition  suit  to  one  in  ejectment,  976. 

introducing  matter  occurring  after  suit,  983. 

changing  prayer  for  relief,  975. 

cases  illustrating  rule  as  to  change,  943,  991. 

notice  of  amendment,  1006. 

how  amendment  is  to  be  made,  949. 

by  interlineation,  950. 

correcting  date  by  interlineation,  950. 

striking  out  a  word  by  erasure,  950. 

statutory  provisions  as  to  changing  parties,  953. 

changing  parties  plaintiff,  943. 

adding  parties  plaintiff,  954. 

adding  parties  defendant,  955. 

dropping  parties,  956. 

substituting  parties,  957. 

correcting  names  of  parties,  957. 

so  as  to  set  out  proper  corporate  name  of  defendant,  997. 

where  husband  or  wife  is  plaintiff,  970,  971. 

changing  husband  from  party  defendant  to  plaintiff,  943. 

when  husband  cannot  be  substituted  for  wife  as  plaintiff,  970,  971. 

or  wife  for  husband,  970,  971. 

changing  suit  against  copartnership  to  one  against  corporation,  957. 

partners  or  the  individuals,  971. 

corporation  or  individuals  as  parties,  957,  963,  971. 

by  changing  corporation  plaintiff  to  individuals,  957. 

by  dropping  unnecessary  party  plaintiff,  1001. 

parties  cannot  be  added  to  prejudice  of  adverse  party,  955. 

bringing  in  parties  subsequently  acquiring  interest,  983. 


526  INDEX. 

AMENDED  PLEADING,  continued. 

adding  defendant  subsequently  interested,  955. 
where  custodian  of  fund  is  changed,  970. 

where  defendant  railroad  company  is  consolidated  pending  suit,  957. 
suits  in  name  of  state,  959. 

substituting  name  of  minor  for  his  guardian,  960. 
in  replevin  by  adding  plaintiff,  954. 
ANSWER,  only  one  allowable,  521. 
joined  with  demurrer,  512,  808. 
to  the  merits  waives  demurrer,  805. 

joining  plea  in  abatement  with  answer  to  merits,  742-745. 
when  dispensed  with,  517. 
construction  of,  183. 
objections  raised  by,  796. 
sufficiency  of,  522. 

which  does  not  state  facts  sufficient  to  constitute  defense,  794. 
sufficient,  though  inartistic,  545. 
blending  defense  with  counter-claim,  794. 
entitling,  516. 

unnecessary  allegations  in,  523. 
when  not  necessary  to  prove  all  its  averments,  100. 
requisites  of,  521. 

what  averments  of  petition  must  be  traversed,  523. 
form  of  denial,  539. 

negativing  precise  words  of  the  petition,  540,  543-545. 
negative  pregnant,  543-545. 
general  and  specific  denial,  538. 

mingled,  849. 
general  denial,  546. 

(See  General  Denial.) 
what  may  be  shown  under  a  general  denial,  551  et  seq. 
denying  specifically  what  is  admissible  under  general  denial,  548. 
denying  execution  of  instrument,  547. 
denial  under  oath,  682  et  seq. 
denial  of  indebtedness,  541. 
denying  averments  as  to  value,  542. 
setting  up  equitable  defense,  9,  536,  537,  726. 
containing  several  defenses,  526. 
general  denial,  with  other  defenses,  549,  550. 
equitable  defense  in  reply  to,  770. 
equitable  defense  in  reply  to  equitable  cross-bill,  770. 
by  several  defendants,  519. 

where  one  defendant  seeks  relief  against  another,  520. 
pleading  new  matter,  622. 

illustrations,  756-758. 
confession  and  avoidance,  626,  733. 
confession  and  avoidance,  statute  of  limitations,  707. 
new  matter  in,  pleading  condition  precedent,  305. 
averring  facts  occurring  after  institution  of  suit,  627,  774 
showing  facts  occurring  subsequent  to  filing,  555. 
cross-bill,  628. 
prayer  for  relief  in,  310. 
affirmative  relief  may  be  asked,  536. 


THE   REFERENCES   ARE   TO   THE    SECTIONS.  527 

ANSWER,  coritinued. 

admission  m  one  part  runs  through  whole,  200. 

successive,  admission  by,  196. 

may  supplement  petition,  269. 

when  motion  to  strike  out  will  be  overruled,  859. 

defect  in,  waived,  875. 

defect  in,  cured  by  verdict,  898. 

demurrer  to,  807. 

when  demurrable,  810. 

demurrer  to,  that  fapts  constitute  no  defense,  825. 

in  equity,  demurrer  to,  809. 

after  demurrer  overruled,  847. 

amending  before  reply  is  filed,  985. 

amending  at  trial,  992. 

amending  after  trial,  996. 

to  amended  petition,  524,  872. 

supplemental,  525,  785. 

not  allowed  under  the  Code,  949. 
when  demurrer  is  waived  by  answer,  518,  80S. 
what  constitutes  a  withdrawal  of,  518. 
treated  as  withdrawn,  787. 
withdrawing  and  demurring,  834. 
pleading  accord  and  satisfaction,  695. 

it  is  new  matter,  757. 
to  action  on  account  stated,  718. 
pleading  pendency  of  appeal,  626,  696. 
answer  to  actions  on  bills  or  notes,  719,  720. 
to  action  on  firm  note,  543. 
to  actions  on  bonds,  721. 
in  actions  against  carriers,  722. 
in  actions  on  contract,  723. 
pleading  discharge  in  bankruptcy,  697. 
pleading  duress,  698, 
in  action  of  ejectment,  725. 
setting  up  equitable  defense  in  ejectment,  726. 
pleading  former  recovery,  699. 
pleading  defense  of  fraud,  152,  155,  700. 
defense  of  illegality,  701. 
in  actions  on  insurance  policies,  727. 
defense  of  innocent  purchaser  for  value,  702. 
to  action  on  lost  instrument,  338,  724 
in  action  on  judgment,  728. 
to  a  proceeding  to  revive  judgment,  728. 
pleading  want  of  jurisdiction,  703. 
pleading  justification,  528,  568. 

it  is  new  matter,  757. 

(See  also  Justification.) 
in  actions  between  landlord  and  tenant,  729. 
pleading  statute  of  limitations,  704-711. 
answer  to  action  on  mechanic's  lien,  723,  730. 
pleading  contributory  negligence,  712-714. 
pleading  notice,  702,  734. 
pleading  payment,  716. 


528  INDEX. 

ANSWER,  continued. 

in  action  for  services,  731. 

in  actions  for  slander  or  libel,  782,  733. 

pleading  statute  of  frauds,  717. 

in  action  against  surety,  734. 

in  actions  for  trespass,  735. 
ANSWER  IN  CHANCERY,  effect  of,  7. 
ANTICIPATING  DEFENSE,  in  petition,  286-292. 

in  counter-claim,  675. 
APPEAL,  pleading  pendency  of,  626,  69a 
APPEARANCE,  by  unauthorized  attorney,  569. 

by  taking  change  of  venue,  741. 

as  affecting  time  for  pleading,  47. 
APPRENTICESHIP,  action  for  various  breaches  of  indenture,  218. 
ARBITRATION  AND  AWARD,  petition  in  action  on  award,  290,  34L 

demurrer  to  motion  for  judgment  on  award,  827. 
ASSAULT,  petition  in  action  for,  342. 

defective  petition  cured  by  verdict,  908. 

consistent  defenses  to  action  for,  534. 

showing  excuse  or  justification,  568. 
ASSIGNED  INSTRUMENT,  action  on,  359,  920. 
ASSIGNEE,  answer  to  action  by,  547. 
ASSIGNMENT,  the  averment  as  to  assignment,  250. 

general  denial  puts  in  issue,  586. 

of  cause  of  action,  proven  under  general  denial,  567. 
changing  party  plaintiff,  953. 

effect  of  on  set-offs  or  counter-claims,  672. 
ASSUMPSIT,  under  the  Code,  68. 

petition  in,  343. 

defective  petition  cured  by  verdict,  909. 
ATTACHING  CREDITOR,  bill  by,  to  set  aside  deed,  490. 
ATTACHMENT,  amended  petition  in,  977. 

interplea  filed  in,  782. 

pleas  in  abatement  and  to  the  merits,  741,  744,  745. 

action  on  bond,  126,  364,  404 

pleading  the  damages  arising  from,  89. 

action  for  malicious,  404. 
ATTACHMENT  BOND,  action  on,  126,  364,  404. 
ATTACKING  PLEADINGS,  general  principles,  788. 

what  objections  must  be  raised  before  verdict,  893-895. 
ATTORNEY,  minor  appearing  by,  886. 

want  of  warrant  of,  886. 

petition  in  action  by,  cured  by  verdict,  902. 
AVERMENTS.    See  Allegations. 
BAIL,  action  on,  114 

BANK,  answer  to  action  on  bond  of  officer,  734 
BANKRUPTCY,  pleading  as  a  defense,  697. 

BENEFIT  ASSOCIATION,  defective  petition  in  action  against,  92a 
BENEFIT  CERTIFICATE,  petition  in  action  on,  397. 

interpleader  on,  781. 


THE   EEFERENCES    ARE   TO   THE    SECTIONS.  529 

BET,  pleading  as  a  defense,  720. 

BILLS  OF  DISCOVERY,  abolished  in  this  state,  6. 

BILLS  IN  EQUITY,  rules  applicable  to,  481  et  seq. 

to  remove  trustee  and  obtain  an  accounting,  261. 

for  specific  performance,  pleading  condition  precedent,  304. 

between  husband  and  wife,  amending,  998. 

demurrer  to  bilL  809. 
See  also  Petition. 

BILLS  AND  NOTES,  petition  in  actions  on,  346-359. 
action  on  joint  note,  248. 
pleading  negotiability  of,  144 
in  action  on,  stating  the  consideration,  349. 
stating  date,  350. 
alleging  acceptance,  355. 
pleading  according  to  legal  effect,  147. 
setting  out  indorsement  in  hcec  verba,  353. 
alleging  demand  and  notice,  356-35S. 
executed  by  agent,  petition  on,  346. 
executed  by  partnership,  694. 
executed  under  assumed  name,  action  on,  247. 
action  on  assigned  non-negotiable  note,  359. 
defective  petition  aided  by  answer,  883. 
cured  by  verdict,  910. 
answer  to  action  on,  719,  720, 
defenses  to  actions  on,  529-531. 

by  representative,  need  not  be  denied  under  oath,  685. 
when  defendant  may  show  fraud,  577. 
what  may  be  shown  under  general  denial,  587. 
admissions  in  actions  on,  202. 
recoupment  in  action  on  note  for  purchase-money,  679. 

BOND,  various  breaches,  only  one  cause  of  action,  219. 
petition  in  action  on,  360. 
official,  petition  in  action  on,  288,  302,  441-445. 
official,  action  on,  prayer  for  relief,  312. 

(See  also  Official  Bonds.) 
other  than  for  the  payment  of  money,  action  on,  362. 
attachment,  action  on,  364.  k 

executed  under  assumed  name,  action  on,  247,  363. 
issued  by  county,  action  on,  288,  451. 
issued  to  railroad  company,  action  on,  451. 
answer  to  action  on,  721. 
general  denial  in  actions  on,  557,  588. 
by  representative,  need  not  be  denied  under  oath,  685. 
official,  pleading  discharge  from,  734. 
of  administrator,  equitable  defense  to  action  on,  536. 
counter-claim  in  action  on,  646,  679. 
defective  petition  in  action  on,  cured  by  verdict,  911. 
failure  to  allege  that  state  sues,  911,  915. 

BREACH  OF  COVENANT,  equitable  defense  to  action  for,  27. 

BREACH  OF  DUTY,  pleading,  33a 
Mo.  Code  Pl.— 34 


530  INDEX. 

BREACH  OF  PROMISE,  joining  count  for  seduction,  226. 

defective  petition  for,  cured  by  verdict,  914. 
CANCELLATION  OF  INSTRUMENT,  joining  with  ejectment,  13,  19. 
CAPACITY,  of  parties,  244. 
of  party,  stating,  250. 
of  plaintiff  to  sue,  251,  817. 
showing  want  of,  under  general  denial,  367. 

As  to  curing  defects  in  this  respect,  see  Defects  Cured. 
CAPTION,  of  petition,  244,  250. 

setting  out  partnership  in,  894. 
CARRIERS,  action  against,  365,  368,  430. 

averment  that  defendant  is  a  common  carrier,  385,  366. 

action  against,  alleging  negligence,  367. 

amending  petition,  980. 

defective  petition  cured  by  verdict,  912. 

answer  in  actions  against,  722. 

general  denial  in  actions  against,  589. 
CAUSE  OF  ACTION,  statutory,  274. 

statutory  or  at  common  law,  275. 

suing  on  one  and  recovering  on  another,  238. 

demurrer  because  no  cause  of  action  is  stated,  837,  838. 

one  or  several,  258. 

when  but  one,  214. 

when  several  may  be  united  in  one  petition,  221  et  seq. 

on  the  several  notes  secured  by  mortgage,  747. 

joining.  214  et  seq. 

demurrer  for  misjoinder,  829-831,  835,  836. 

legal  and  equitable  joined,  229. 

ex  delicto  and  ex  contractu  joined,  514. 

when  joined,  all  must  belong  to  same  class,  227. 

when  joined,  must  be  separately  stated,  230-232. 

same,  stated  in  several  counts,  236,  237. 

amending  where  part  of  pleading  is  stricken  out,  948. 

amending  pleadings  after  cause  remanded,  947. 

transferring,  changing  party  plaintiff,  953. 

new  plaintiff  does  not  necessarily  change,  958. 

changing  from  one  against  partnership  to  one  against  corporation,  957. 

not  a  new  one  because  name  of  female  plaintiff  is  changed,  955. 

matters  of  aggravation  need  not  be  specially  pleaded,  270. 

waiving  tort,  265. 

must  be  complete  at  date  of  institution,  983. 

showing  facts  occurring  since  its  institution,  552,  555. 

prayer  for  relief  in,  306. 
CERTAINTY,  in  pleading,  185. 

required,  38. 

in  prayer  for  relief,  307. 
CERTIFICATE  OF  STOCK,  petition  in  action  on  lost,  338. 

as  an  exhibit,  508. 
CHANCERY,  effect  of  answer  in,  7. 
CIRCUITY  OF  ACTION,  avoiding,  15  et  seq. 
CLERICAL  ERROR,  when  it  will  be  disregarded,  790. 


THE    REFERENCES    ARE   TO   THE    SECTIONS.  531 

CODE,  a  system  complete  in  itself,  59. 
its  purpose,  34. 
rules  of  pleading  under,  64 
furnishes  its  own  rules,  59. 

distinction  between  pleading  under,  and  at  common  law,  264 
distinction  between  actions  at  law  and  suits  in  equity,  1. 
joining  legal  and  equitable  remedies,  16. 

COLLECTOR'S  BOND,  petition  in  action  on,  441,  444,  445. 
what  demurrer  to  petition  admits,  821. 
departure  in  reply,  775. 

COLLOQUIUM,  in- slander  or  libel,  466-471. 

COMMON-LAW  FORMS,  effect  of  the  Code  upon,  67,  68. 
as  bearing  on  counter-claim,  662. 
for  money  had  and  received,  344 

CONCESSION,  by  city,  action  on,  418. 

CONCLUSIONS  OF  LAW.  should  not  be  stated  in  pleading.  34,  108,  109,  131, 
144, 146. 
when  pleaded,  not  traversable,  146. 
not  to  be  pleaded  in  answer,  132. 
not  new  matter,  754 
not  admitted  by  demurrer,  819. 

but  demurrer  admits  the  equities  set  forth  in  bill,  820. 
reply  to,  when  set  up  in  answer,  750. 
an  allegation  that  one  is  the  head  of  a  family,  an  allegation  of  fact,  442. 

CONDITION,  alleging  performance  of,  491. 
subsequent,  pleading  in  petition,  286. 

CONDITION  PRECEDENT,  pleading,  162,  297-304 
rule  as  to  pleading,  confined  to  contracts,  162. 
in  statute,  172. 

petition  failing  to  allege  performance  of,  aided  by  answer,  885. 
pleading  in  new  matter  in  answer,  305. 
pleading  waiver  of,  104 

CONFESSION  AND  AVOIDANCE,  admission  by,  195. 
not  provable  under  general  denial,  551,  552. 
in  actions  for  slander  or  libel,  733. 

CONSIDERATION,  stating,  in  action  on  bills  and  notes,  349. 
in  actions  on  contracts,  373. 

pleading  failure  of,  131. 

showing  want  or  failure  of,  under  general  denial,  577. 

showing  failure  of,  by  way  of  recoupment,  679. 
CONSTABLE,  bond  of,  action  on,  442. 

answer  of,  in  action  for  trespass,  735. 
CONSTITUTION,  violation  of,  cannot  be  shown  under  general  denial,  556. 
CONSTRUCTION  OF  PLEADINGS,  the  statutory  rules,  178, 179. 

liberal,  178-182. 

sufficiency,  how  determined,  178. 

most  strongly  against  pleader,  182-185. 

under  rule  as  to  defects  cured  by  verdict,  892. 
CONTINUANCE,  in  consequence  of  amendment,  946,  989,  1008. 


532  INDEX. 

CONTRACT,  what  is  an  action  arising  on,  661-6G3. 
by  several,  action  on,  248. 
action  on  modified  contract,  374. 
pleading  contract,  187. 
petition  in  action  on,  300,  369-376. 
indefiniteness  in  alleging,  853. 
defective  petition  cured  by  verdict,  913. 
amending  petition  on,  972,  974. 
of  sale,  action  for  breach,  304. 
pleading  and  proof  in  actions  on,  81,  82. 
action  on,  stating  the  consideration,  373. 
express  or  implied,  pleading,  271. 
setting  forth  in  hcec  verba,  144-150,  285,  353. 
charging  several  breaches  in  one  count,  217. 
action  on,  changing  to  tort,  972. 
action  on  joint,  cannot  be  changed  to  several,  974 
action  for,  with  one  on  injury  to  property,  222. 
gambling,  pleading  illegality  of,  701. 
by  agent,  action  on,  82. 
answer  in  actions  on,  723. 
denying  immaterial  stipulation  in,  522. 
general  denial  of  making,  552. 
general  denial  in  actions  on,  590-593. 
in  action  on,  what  general  denial  puts  in  issue,  580. 
showing  illegality  of,  under  general  denial,  577. 
various  defenses  to,  530. 

counter-claim,  where  plaintiff  elects  to  sue  in  tort,  668,  669. 
replication  alleging  estoppel,  a  departure,  778. 

CONTRIBUTION,  defective  petition  for,  cured  by  verdict,  915. 

CONTRIBUTORY  NEGLIGENCE,  pleading  in  petition,  437. 

matter  of  defense,  712,  713. 

must  be  pleaded,  609. 

manner  of  pleading,  714. 

reply  to  defense  of,  762. 

CONVERSION,  action  for,  joined  with  negligence,  215. 
pleading,  113,  130. 
petition  in  action  for,  377. 
defective  petition  cured  by  verdict,  900. 

CORPORATE  AUTHORITIES,  what  is  meant  by,  in  statute  as  to  denial 
under  oath,  686. 

CORPORATION,  petition  in  actions  by  or  against,  379. 
right  of  foreign  to  sue,  817. 
as  plaintiff,  changing  to  copartners,  957. 
action  against,  for  canceling  stock  certificates,  378. 

for  refusing  to  transfer  stock,  777. 
failure  to  allege  incorporation  of,  927. 
putting  incorporation  in  issue  by  general  denial,  570. 
affidavit  to  denial  of,  693. 
bill  in  proceeding  against  shareholders,  482. 
execution  against  stockholders,  pleading  set-off,  680. 
pleading  dissolution  of,  379. 


THE    REFERENCES    ARE   TO   THE   SECTIONS.  533 

COSTS,  upon  sustaining  plea  in  abatement,  739. 

in  case  of  amendment,  987,  1011. 

as  terms  of  allowing  amendment,  987,  989. 
COUNT.    See  Counts. 
COUNTER-CLAIM,  definition  of,  637,  639.       / 

its  origin  and  nature,  630,  634 

a  statutory  right,  630. 

statutory  provisions,  633. 

right  of,  in  equity,  641. 

equitable,  allowed  though  not  pleaded,  875. 

what  it  includes,  631. 

includes  recoupment,  644. 

distinction  between,  and  set-off,  637,  639,  643. 

plea  of  payment  is  not,  639. 

may  be  either  legal  or  equitable,  635. 

demand  must  exist  at  commencement  of  action,  671. 

several  may  be  set  up  in  same  answer,  526. 

different  must  be  consistent,  527. 

how  it  operates,  632. 

construction  of  the  statute,  634. 

must  be  construed  with  regard  to  the  exemption  statute,  641. 

method  of  pleading,  674,  675. 

misjoinder  or  non-joinder  of  parties  in,  834. 

blending  with  matter  of  defense,  636,  674,  794.  855. 

negativing  affirmative  matter,  675. 

eifect  of  pleading,  677. 

unliquidated  damages,  637,  641,  643,  646. 

what  is  a  transaction,  664. 

action  arising  on  contract,  661-663. 

connected  with  the  subject  of  the  action,  665. 

actions  ex  delicto  and  ex  contractu,  638,  669. 

in  action  for  tort,  664-669. 

damages  from  fraudulent  misrepresentations,  679. 

where  plaintiff  elects  to  sue  in  tort,  668. 

effect  of  waiving  the  tort,  667-669. 

mutuality  required,  647-659. 

joint  against  individual  demand,  653. 

partnership  and  individual  debts,  654. 

how  affected  by  assignment,  672. 

in  action  on  bond,  646. 

in  proceedings  against  stockholders,  680. 

in  garnishment  cases.  681. 

in  action  for  a  penalty,  670. 

as  between  principal  and  agent,  663. 

in  mechanics'  lien  cases,  659. 

as  between  partners,  656. 

in  case  of  surviving  partner,  655. 

subject-matter  of  pending  action,  642. 

in  favor  of  surety  or  guarantor,  657,  658. 

reply  to,  52,  750,  766. 

pleading  counter-claim  in  reply,  676. 

failure  to  reply  to,  753. 
See  also  Cross-bill, 


534  INDEX. 

COUNTS,  whether  one  count  or  several,  214  et  seq.,  258. 
several,  241. 

several  causes  of  action  in  one,  how  waived,  871. 
demurrer  for  improperly  joining,  829-831. 
several,  same  cause  of  action  in,  236,  237. 
each  must  be  complete  in  itself,  234,  235. 
must  be  consistent  with  each  other,  233. 
inconsistent,  motion  to  elect,  861. 
defects  of  one,  cannot  be  supplied  by  another,  241. 
at  law  and  in  equity  must  be  separately  stated,  18,  19. 
dividing  petition  into,  by  amendment,  999. 
abandoned,  cannot  be  amended,  995. 
COUNTY,  defective  petition  in  actions  against,  916. 
COUNTY  CLERK,  action  on  bond  of,  444,  445. 
COUNTY  COLLECTOR.     See  Collector's  Bond. 
COUNTY  TREASURER,  action  on  bond  of,  445. 
COUNTY  WARRANT,  defective  petition  in  action  on,  916. 
COVENANT,  action  for  breach  of,  380. 
defective  petition  in,  917. 

amending,  1001. 
immaterial,  denying  performance  of,  522. 
defense  in  action  for  breach  of,  27. 
independent,  pleading,  298. 
CREDITOR'S  BILL,  instance  of,  490. 

where  amendment  is  allowable,  962. 
CROPS,  action  for  injury  to,  402. 
CROSS-BILL,  its  nature,  628. 
legal  or  equitable,  662. 
containing  equitable  defense,  9. 
containing  a  prayer  for  specific  performance,  12. 
reply  to,  770. 
effect  of  decree  on,  12. 
between  defendants,  629. 
time  to  plead  to,  48. 

See  also  Counter-claim. 

CUSTOM,  showing  under  general  denial,  593. 

DAMAGE  ACT,  petition  in  action  under,  435,  436. 

DAMAGES,  pleading,  88. 

setting  forth  in  petition,  317. 

insufficient  averment  of,  850. 

stating  the  measure  of,  319. 

stating  the  quantum,  319,  330. 

treble  or  single,  275. 

petition  in  action  for  treble,  478. 

joining  actions  for  single  and  double,  224. 

all  must  be  included  in  one  prayer,  321. 

actual  and  exemplary,  331. 

general  and  special,  320. 

alleging,  in  actions  for  slander,  464. 

general  and  special  in  slander  and  libel,  323,  464,  472. 


THE    REFERENCES    ARE    TO    THE    SECTIONS.  535 

DAMAGES,  continued. 
special  in  replevin,  322. 
in  trespass,  general  and  special,  322. 
continuing,  318. 

pleading,  in  case  of  personal  injury,  324-329. 
loss  of  time  and  earnings,  325-328. 
in  cases  of  permanent  injury,  329. 
pleading  in  mitigation  of,  528. 

mitigation  of,  may  be  shown  under  general  denial,  613. 
pleading  mitigation,  in  actions  for  slander  or  libel,  732,  733. 
averment  that  damages  are  irreparable,  484. 
pleading  in  attachment  suits,  89. 
interest  must  be  prayed  for,  316. 

inquiry  of,  after  demurrer  sustained  or  overruled,  846. 
assessment  of,  after  demurrer  sustained,  824. 
DEBT,  petition  in  suit  to  recover,  337. 
DECEDENT,  contract  with,  action  on,  376. 

action  against  for  taxes,  473. 
DECEIT,  pleading  in  action  for,  158,  333. 

action  for,  joined  with  action  on  warranty,  222. 
pleading,  by  way  of  counter-claim,  679. 
DEED,  bill  to  set  aside,  488. 

DEED  OF  TRUST,  remedies  of  cestui  que  trust,  415. 
bill  to  set  aside  sale,  489. 
title  through,  effect  of  general  denial,  599. 
DEFAULT,  when  it  may  be  taken,  56. 
defects  cured  by,  889. 
what  relief  granted  on,  311. 
taking  after  amending  petition,  985. 
amending  petition  after  taking,  938. 
pleading  after,  517. 
setting  aside,  56,  57. 
DEFECTIVE  APPLIANCES,  furnished  employee,  action  for,  409.. 
DEFECT  OF  PARTIES,  objection,  how  raised  in  answer,  796. 
DEFECTS,  what  are  material,  790. 
objections  to,  how  raised,  793,  796. 
how  objections  to  pleading  may  be  waived,  865  et  seq. 
stage  of  the  proceedings  at  which  objection  made,  797. 
in  petition,  objecting  to  introduction  of  evidence,  798-800. 
in  pleading,  effect  of  pleading  over,  806. 
effect  of  going  to  trial,  806. 

party  first  in  fault  cannot  take  advantage  of,  792. 
DEFECTS  CURED,  some  cannot  be,  797. 
defects  which  cannot  be  cured,  877. 
by  subsequent  pleading  of  same  party,  880. 
by  pleading  of  adversary,  881-885. 
in  petition  by  reply,  752. 
cannot  be  cured  by  agreement  of  parties,  878. 
by  agreed  statement,  791. 
by  default,  889. 
by  evidence,  879.  f 


536  INDEX. 

DEFECTS  CURED  BY  VERDICT,  the  rule,  136,  797,  890. 
the  rule  applies  to  answers  and  replies,  898. 
applies  to  finding  of  court,  890,  897. 
construction  of  pleadings  under  this  rule,  892. 
must  be  evidence  as  to  the  omitted  averment,  896. 
where  demurrer  would  lie,  886,  888. 
how  objection  must  be  raised,  794. 
objection  to  introduction  of  evidence,  798-800. 
cannot  be  reached  by  motion  in  arrest,  81)1. 
defectively  pleading  notice,  904. 
overruling  motion  to  elect,  876. 
clerical  mistakes,  901. 
time  of  filing  reply,  899. 
departure  cured  by  verdict,  771. 
petition  in  action  for  assault,  908. 
petition  in  assumpsit  909. 
in  action  against  benefit  association,  923. 
action  on  bill  or  note,  910. 
petition  in  action  on  bond,  911. 
defective  petition  in  action  against  carrier,  912. 
action  on  contract,  913. 
action  for  contribution,  915. 
defective  allegation  of  incorporation,  927. 
in  action  against  county,  916. 
in  action  for  breach  of  covenant,  917. 
general  charge  of  negligence  or  fraud,  907. 
in  action  for  fraud,  918. 
in  action  for  malicious  attachment,  924. 
action  for  breach  of  promise,  914 
in  action  on  mechanic's  lien,  925. 
in  proceeding  to  foreclose  mortgage,  926. 
in  actions  by  municipalities,  927. 
in  actions  based  on  negligence,  928. 
stating  ownership,  906. 
in  actions  against  railroad  companies,  929. 
in  replevin  suits,  930. 
in  actions  for  slander,  931. 

defective  allegation  of  authority  to  levy  taxes,  927. 
stating  the  value,  905. 

DEFECTS  WAIVED,  general  rules,  161,  865. 
what  cannot  be  waived,  866. 
in  answer,  875. 

as  depending  upon  the  time  when  objection  is  made,  797. 
by  failing  to  object  at  proper  time,  806. 
by  failure  to  demur,  833,  873. 
by  failure  to  demur  or  answer,  513. 
by  failing  to  demur  or  file  motion,  771,  793. 
by  failure  to  file  motion  to  elect,  860. 
by  pleading  to  the  merits,  868. 
by  answering  over,  834. 
by  going  to  trial,  873. 
by  pleading  over  or  going  to  trial,  806. 
by  pleading  to  amended  pleading,  872. 


THE    REFERENCES    ARE   TO   THE    SECTIONS.  537 

DEFECTS  WAIVED,  continued. 

filing  third  pleading  instanter,  872. 

objections  not  made  in  trial  court,  876. 

mingling  general  with  specific  denial,  546,  849. 

misjoinder  of  party  or  causes,  514. 

improper  mingling  of  causes  of  action,  871. 

unnecessary  parties,  867. 

general  allegation  of  negligence,  422. 

adding  party  plaintiff,  872. 

duplicity,  855. 
DEFENDANT,  when  he  must  plead,  47. 

filing  answer  before  default,  50. 

must  demur  or  answer,  512. 

pleading  in  the  alternative,  71. 

entitled  to  affirmative  relief,  536. 

relief  against  co-defendant,  48,  520. 
DEFENDANTS,  action  against  several,  248. 

joint,  action  on  contract  against,  369. 

improperly  joined,  who  may  demur,  812. 

answering  jointly,  519. 

several,  demurrers  by,  813. 

several,  answers  by,  519. 

remedies  between,  30. 

cross-bill  between,  48,  520. 
DEFENSES,  must  be  raised  by  the  pleadings,  77. 

good  to  part  of  cause  of  action  not  demurrable,  810. 

alternative,  71. 

to  the  merits  and  in  abatement  joined,  741-745. 

blended  with  counter-claim,  794,  855. 

several,  how  pleaded,  526. 

one  of  several,  adjudged  insufficient,  804 

inconsistent,  192. 
when  cured,  898. 
motion  to  elect  between,  863. 

what  are  consistent,  528-535. 

defense  which  has  been  abandoned,  784 

anticipating  defense  in  petition,  286-292. 

anticipating,  in  counter-claim,  675. 

affirmative,  cannot  be  proved  under  general  denial,  551,  552. 

equitable,  536,  537. 

effect  of  pleading,  8. 

withdrawing  by  amendment,  992. 

change  of,  by  amendment  of  answer,  992. 

equitable  in  ejectment,  726. 

equitable,  how  tried,  536. 

dilatory,  not  favored,  738. 

founded  on  lost  instrument,  724. 

to  instrument  not  denied  under  oath,  69L 

under  bankruptcy  law,  697. 

to  actions  on  bills  or  notes,  719,  720. 

to  actions  on  bonds,  721. 

of  fraud,  how  pleaded,  700. 

of  illegality,  how  pleaded,  701. 


INDEX. 

DEFENSES,  continual 

want  of  jurisdiction,  703. 

of  statute  of  limitations,  704-711. 

of  statute  of  limitations,  avoiding,  762. 

in  actions  for  services,  731. 

in  actions  for  slander  or  libel,  732,  733. 

in  action  against  surety,  734 

in  actions  for  trespass,  735. 

reply,  where  new  matter  in  answer  is  not  a  valid  defense,  750. 
DELIVERY,  of  note,  pleading,  347. 
DEMAND,  necessity  of  alleging  in  conversion,  377. 
DEMURRER,  statutory  grounds,  807. 

who  may  file,  812. 

joint,  when  it  will  lie,  812. 

joint,  when  allowable,  813. 

where  there  are  several  defendants,  813. 

to  answer,  751,  810. 

to  answer,  what  it  should  state,  810. 

to  answer,  facts  constituting  no  defense,  825. 

to  answer,  when  a  withdrawal  of  reply,  751. 

when  it  lies,  172,  518,  790. 

defects  must  appear  upon  the  face  of  the  petition,  826. 

what  objections  may  be  raised  by,  829. 

what  objections  must  be  raised  by,  833. 

to  whole  or  part  of  pleading,  807. 

general,  793. 

general,  what  it  must  contain,  814. 

general,  what  it  reaches,  816. 

general,  where  any  part  of  the  pleading  is  good,  810. 

special,  when  it  lies,  771,  793. 

to  petition  on  contract,  145. 

special,  as  to  matters  of  form,  815. 

special,  to  new  matter,  799. 

time  for  filing,  51,  840. 

time  for  filing  to  answer,  49. 

in  equity  causes,  809. 

to  answer  in  equity,  809. 

in  equity  causes  admits  the  equities,  820. 

to  prayer  for  relief,  828. 

motions  equivalent  to,  795. 

oral,  at  trial,  798-800. 

demurrer  to  the  evidence,  801. 

demurrer  joined  with  answer  or  reply,  512,  808. 

blended  with  matter  of  defense,  834. 

what  a  demurrer  reaches,  816  et  seq. 

raises  issue  of  law,  35. 

what  it  reaches  in  amended  petition,  827. 

must  specify  the  grounds,  807,  825. 

no  cause  of  action  stated,  837,  838. 

to  bill  in  equity,  where  facts  do  not  warrant  equitable  relief,  839. 

that  plaintiff  has  adequate  remedy  at  law,  833. 

where  the  facts  alleged  do  not  authorize  the  relief  prayed,  839. 

capacity  of  plaintiff  to  sue  raised  by,  817. 


THE    REFERENCES    ARE    TO   THE    SECTIONS.  539 

DEMURRER,  continued. 

raising  defense  of  limitation  by,  705. 
raising  question  of  statute  of  limitations.  832. 
for  want  of  jurisdiction,  740. 
where  party  is  added  as  plaintiff,  872. 
where  amended  petition  changes  cause  of  action,  794. 
another  action  pending,  826. 
to  plea  in  abatement,  816. 
misjoinder  or  non-joinder  of  parties,  834. 
misjoinder  of  causes,  829-831,  835,  836. 
as  to  exhibit,  496. 
for  failure  to  file  exhibit,  811. 
as  bearing  on  statute  of  jeofails,  886,  888. 
what  it  admits,  818. 
does  not  admit  conclusion  of  law,  819. 
in  equity  causes  it  admits  the  equities  as  charged,  820. 
does  not  admit  invalidity  of  statute,  819. 

does  not  admit  allegation  that  a  conveyance  was  fraudulent,  819. 
admission  by,  limited  to  case  at  bar,  822. 
admission  by,  effective  in  appellate  court,  823. 
waiver  of,  after  filing,  843. 
when  waived  by  filing  answer,  512. 
right  to,  waived  by  answering  over,  834,  847. 
action  of  court  on,  841. 
which  has  not  been  acted  on,  843. 
when  presumed  to  be  withdrawn,  805. 
treated  as  withdrawn,  787. 
what  may  be  considered  in  passing  upon,  841. 
goes  back  to  first  pleading,  792. 
raises  sufficiency  of  prior  pleading,  842. 
effect  of  sustaining,  844 
sustained,  amending  the  pleading,  987. 

sustained  as  to  one  of  two  defendants,  when  amended  petition  is  neces- 
sary, 948. 
sustained  as  to  one  of  two  defendants,  948. 
sustained  to  a  part  of  the  pleading,  844. 
effect  of  sustaining  as  to  third  pleading,  845. 

judgment  on,  not  a  bar,  952. 
to  special  plea  to  bill  in  equity  overruled,  846. 
effect  of  overruling,  846. 
overruled,  inquiry  of  damages,  846. 
judgment  upon,  846. 
when  action  on  may  be  reviewed,  844. 

DENIAL,  form  of,  539. 
inartistic,  545. 

on  information  and  belief,  539. 
only  two  kinds,  538. 

mingling  general  with  specific,  538,  546. 
in  precise  words  of  the  petition,  540,  543-545. 
in  reply,  759-762. 
of  execution  of  instrument,  547. 
of  execution,  what  constitutes,  684. 


540  INDEX. 

DENIAL,  continued. 
under  oath,  682n 

waived,  873. 

in  what  cases,  683. 

when  the  rule  does  not  apply,  G85. 

effect  of  failing  to  verify,  089. 

of  incorporation,  693. 

of  partnership,  694. 
of  averments  as  to  value,  543. 

DEPARTURE,  in  reply,  768-770. 

pleading  a  ratification  is  not,  779. 

additional  or  different  relief,  772. 

claiming  additional  damages,  774. 

character  of  suit  not  changed,  773. 

how  taken  advantage  of,  771. 

when  reached  by  motion  to  strike  out,  854 

when  the  objection  is  waived,  771,  1010. 

cured  by  verdict,  771. 

amending  pleadings  after  it  is  filed,  989. 

DESCRIPTION,  in  petition  in  ejectment,  387. 

of  premises  in  action  for  trespass,  478. 

inadequate,  met  by  motion  to  make  definite  and  certain,  853. 

correcting  by  amendment,  1001. 

correcting,  not  a  change  of  cause  of  action,  976. 

mistake  in,  cured  by  jeofails,  886. 

insufficient,  defect  waived,  867. 
DESTROYED  PLEADINGS,  how  restored,  58. 
DISCOVERY,  bills  of,  abolished  in  this  state.  6. 
DISMISSAL,  motion  for,  512. 

motion  for,  how  waived,  806. 

on  court's  own  motion,  788. 

motion  to  dismiss  confesses  allegations,  795. 

where  party  fails  to  comply  with  order  to  make  pleading  definite,  853. 

as  to  one  of  two  defendants,  not  necessary  to  file  amended  petition,  948. 

as  to  parties  after  change  of  venue,  988. 

count  dismissed  cannot  be  amended,  940. 
DITCHES,  action  against  railroad  for  failing  to  maintain,  455. 
DIVORCE,  petition  in  suit  for,  383. 

affidavit  to  petition,  44. 
DOWER,  petition  for  admeasurement  of,  384 

assigning,  and  in  same  proceeding  awarding  possession,  21. 
DRAFT,  pleading  in  action  on,  358. 
DRAMSHOP  KEEPER,  petition  in  action  against,  385. 
DUPLICITY,  when  waived,  855. 

reached  by  motion  to  strike  out,  855. 
DURESS,  pleading,  176,  698. 
DUTY,  pleading  breach  of,  116,  138. 
EJECTMENT,  combined  with  other  remedies,  17-19. 

in  connection  with  partition,  22. 

joined  with  suit  for  cancellation  of  deed,  13. 


THE   REFERENCES   ARE   TO   THE    SECTIONS.  541 

EJECTMENT,  continued. 

brought  by  cestui  que  trust,  trustee  may  be  added,  954 

wife  improperly  joined  may  be  stricken  out,  956. 

pleading  in,  135. 

petition  in,  386,  387. 

amending  petition  so  as  to  add  claim  for  equitable  relief,  969. 

adding  by  amendment  a  count  in  equity,  969,  976,  983. 

correcting  erroneous  description  in  petition,  1001. 

under  general  allegation  of  title,  plaintiff  may  show  title  by  limitation, 

604 
answer  in,  725. 
effect  of  answer  in,  201. 
pleading  statute  of  limitations,  531,  704 

proving  under  general  denial,  604 
equitable  defense  in,  9,  10,  536,  726. 
affirmative  relief  prayed  by  defendant,  28  et  seq. 
equitable  defense,  joined  with  general  denial,  550. 
what  may  be  shown  under  general  denial,  595-600,  604 
■  under  general  denial  showing  deed  to  be  escrow,  597. 
proving  statute  of  limitation  under  general  denial,  604 
deed  may  be  attacked  for  fraud  under  general  denial,  596. 
praying  additional  relief  in  reply,  772. 

ELECTION,  motion  to  compel,  514 

court  may  compel  of  its  own  motion,  789. 
See  Motion  to  Elect. 

ELECTIONS,  judges  of,  actions  against,  388. 

pleading  bet  on  as  a  defense,  720. 
ELEVATOR,  action  for  injuries  received  in,  433. 
EMPLOYER,  liability  of,  for  act  of  employee,  616. 

action  against,  for  act  of  employee,  411. 
EMPLOYER  AND  EMPLOYEE,  actions  between,  407-411. 

action  by  employee  for  injuries,  428. 

assumption  of  risks  by  employee  must  be  pleaded,  622. 

general  denial  in  actions  between,  607. 

answer  in  action  for  discharge,  731. 

reply  in  action  for  discharge,  761. 

answer  in  action  for  services,  731. 

action  on  breach  of  contract,  election  in,  864 
EQUITABLE  DEFENSE  pleading,  73. 

to  action  at  law,  26. 

in  reply,  to  equitable  defense  in  answer,  770. 

converting  action  at  law  into  suit  in  equity,  9. 
in  ejectment,  9,  10. 
by  cross-bill,  9. 

effect  of  failing  to  present,  11. 

in  ejectment,  726. 

mistake,  537. 

to  action  for  appropriating  land  by  railroad,  12. 
EQUITABLE  RELIEF,  affirmative,  in  answer,  9. 

consistency  in,  73. 

prayer  for,  in  reply,  773. 


g  |  •_>  INDEX. 

EQUITABLE  RIGHTS,  in  same  proceeding  with  legal,  16. 

See  Equity. 
EQUITABLE  PROCEEDING,  what  petition  must  contain,  240. 

See  Equity. 
EQUITIES,  outstanding,  cannot  be  shown  under  general  denial,  600. 

set  up  in  reply,  770. 
EQUITY,  separate  proceeding  in,  770. 

petition  in,  240.  481  et  seq. 

demurrer  to  petition,  809. 

allowing  amendments  in,  994 

amending  bill  between  husband  and  wife,  998. 

joining  with  action  at  law,  280. 

pleading  fraud  in,  152,  157. 

jurisdiction  of  counter-claim  or  set-off,  641. 

effect  of  answer  in,  7. 
ESCHEAT,  petition  in  proceeding  to  enforce,  294,  389. 
ESCROW,  showing,  under  general  denial,  597. 
ESTOPPEL,  cannot  be  shown  under  general  denial,  571. 

cannot  be  proved  under  general  denial  in  reply,  762. 
EVIDENCE  not  admissible  in  support  of  account  not  filed,  849. 

admissions  by  demurrer  not  admissible  as,  822. 

objecting  at  trial  to  introduction  of,  798-800,  894. 

when  defects  are  cured  by,  790. 
EVIDENTIAL  FACTS,  not  to  be  pleaded,  109,  112,  128, 144,  238,  270. 

EXCEPTION,  pleading,  164,  295,  296. 

pleading  in  counter-claim,  675. 

distinction  between,  and  proviso,  295. 
EXCUSE  showing,  under  general  denial,  568. 
EXECUTION,  of  instrument,  what  it  includes,  687,  688. 
EXECUTOR,  action  on  bond  of,  443. 
EXEMPTION,  pleading  by  debtor,  128. 

pleading  in  action  against  officer,  288,  296. 

mode  of  pleading,  763. 

pleading  notice  of,  288. 

set  up  in  reply,  775. 
EXHIBITS,  statutory  provisions  as  to,  494,  496. 

demurrer  to,  811. 

not  necessary  to  recite  filing,  499. 

not  a  part  of  the  record,  504. 

considering  when  pleading  is  attacked,  803. 

what  instruments  must  be  filed,  495. 

transcript  of  judgment,  485,  51L 

lost  instrument,  498. 

effect  of  failing  to  file,  500. 

excuse  for  failure  to  file,  502. 

raising  the  objection  that  it  is  not  filed,  500,  501. 

may  be  filed  before  suit  is  dismissed,  503. 
EXPENSES,  when  necessary  to  plead  specially,  328. 
FACT,  issue  of,  how  raised,  35. 


THE    REFERENCES   ARE   TO   THE   SECTIONS.  543 

FACTS,  only,  are  to  be  pleaded,  108  et  seq. 

statement  that  a  conveyance  was  fraudulent  not  a  statement  of  fact,  819. 
must  be  directly  and  unequivocally  averred,  62. 
sufficient  statement  of,  38,  64. 
only  the  ultimate,  to  be  pleaded,  63,  115. 
what  are  constitutive,  270. 
pleading  implied  facts,  115,  117. 
raised  by  legal  implication  not  constitutive,  271. 
inferable  from  facts  pleaded,  109,  117,  276. 
not  alleged,  cannot  be  proved,  76. 
stating  unnecessary  facts,  278,  279. 
jurisdictional,  pleading,  273. 
evidential,  not  to  be  pleaded,  63,  128. 
charging  on  information  and  belief,  70. 
charging  in  the  alternative,  70. 
occurring  after  institution  of  suit,  627.  985. 
occurring  subsequent  to  suit,  alleging  in  reply,  767. 
FALSE  IMPRISONMENT,  action  for,  403. 
FAMILY,  head  of,  stating  in  pleading,  442. 

FEDERAL  STATUTE,  validity  of,  not  raised  by  general  denial,  556. 
FELLOW-SERVANT,  incompetent,  injury  by,  410. 
FENCE  action  against  railroad  for  failure  to,  454 
FICTIONS  OF  LAW,  not  to  be  pleaded,  108,  131. 

not  traversable,  146. 
FILING  PLEADINGS,  out  of  time,  50. 
time  of  filing  motion,  789,  858. 
of  filing  demurrer,  840. 
FIRES,  action  against  railroad  for  setting,  456. 
FORECLOSURE,  plaintiff  in  ejectment  may  ask  in  reply,  28. 

See  Mortgages. 
FOREIGN  LAWS,  pleading,  169. 
FORMER  RECOVERY,  how  pleaded,  699. 

may  be  given  in  evidence  under  general  denial,  574. 
raising  defense  by  demurrer,  838. 
FORM,  and  substance,  266. 
for  civil  action,  68,  263. 
of  petition,  242. 
of  the  prayer,  69. 

specifying  term  of  court  a  requirement  of,  244 
objections  to,  must  be  taken  before  trial,  873. 
FORM  OF  ACTION,  only  one,  68,  263. 
FORMS,  abolished,  65,  67. 
distinction  between,  68. 

distinction  in  this  respect  between  the  common  law  and  the  Code,  67. 
distinction  between,  in  actions  at  law  and  suits  in  equity  abolished,  1,  2. 
FRAUD,  action  for,  joined  with  accounting,  225. 
pleading,  151-161,  333,  334 
pleading  in  reply,  765. 
mode  of  pleading,  154. 
charge  of,  must  be  specific,  334 
general  charge  of,  cured  by  verdict,  907. 


544  INDEX. 

FRAUD,  continued 

oharging  upon  information  and  belief,  238. 

defective  petition  for.  cured  by  verdict,  918. 

admission  of,  191. 

pleading  as  a  defense,  700. 

pleading,  in  connection  with  general  denial,  550. 

showing,  under  general  denial,  559,  577-583. 

release  procured  by,  24. 
FRAUDULENT  CONVEYANCE,  pleading,  137. 

bill  to  set  aside,  490. 

parties  to,  870. 
FUND,  in  proceeding  to  reach,  a  new  custodian  may  be  brought  in,  970. 

in  hands  of  legal  representative,  721. 
GARNISHMENT,  pleading  and  proof  in,  94. 

setting  up  as  a  defense,  716. 

pleading  counter-claim  in,  681. 
GENERAL  DENIAL,  compared  with  general  issue,  551-563. 

form  of,  546. 

excludes  implied  admission,  205. 

following  a  direct  admission,  204 

admits  plaintiff's  corporate  capacity,  570. 

specific,  not  admissible  in  place  of,  548. 

cannot  be  blended  with  specific,  538,  546,  849. 

joined  with  confession  and  avoidance,  195. 

joining  other  defenses  with,  549,  550. 

where  the  petition  contains  unnecessary  averments,  565,  566. 

in  reply,  52,  53,  761. 

what  may  be  shown  under,  551  et  seq. 

in  reply,  what  may  be  shown  under,  761,  762. 

showing  adequate  remedy  at  law,  576. 

showing  alteration  under,  585. 

puts  assignment  in  issue,  586. 

showing  custom  under,  593. 

showing  outstanding  equities,  600. 

proving  estoppel  under,  571. 

showing  matters  of  excuse  or  justification,  568. 

showing  former  recovery,  574. 

showing  fraud  or  illegality,  577-583. 

does  not  raise  question  of  innocent  purchaser  for  value,  614. 

showing  want  of  jurisdiction  under,  569. 

showing  payment  or  tender,  611,  612. 

proving  ratification  under,  572. 

showing  plaintiff's  want  of  capacity  to  sue,  567. 

showing  statute  of  frauds,  564,  592. 

showing  waiver  under,  575. 

in  actions  involving  agency,  584. 

in  actions  on  bills  and  notes,  587. 

in  actions  on  bonds,  588. 

in  actions  against  carriers,  589. 

in  actions  on  contracts,  590. 

showing  contract  void  under  statute  of  frauds,  592. 

raising  issue  of  incorporation  by,  570. 

in  actions  of  ejectment,  595-600. 


THE   REFERENCES   ARE   TO   THE   SECTIONS.  545 

GENERAL  DENIAL,  continued. 

in  actions  between  employer  and  employee,  607. 

showing  liability  of  employer  for  employee's  act,  616. 

in  action  for  homicide,  601. 

in  action  by  infant,  602. 

in  actions  between  landlord  and  tenant,  603. 

raising  defense  to  statute  of  limitations,  604. 

in  mechanics'  lien  suits,  608. 

in  action  based  on  ordinance,  573. 

in  actions  for  negligence,  609. 

in  action  against  officer,  610. 

in  actions  for  personal  injuries,  613. 

proceeding  to  quiet  title,  615. 

in  actions  against  railroad  company,  616. 

in  replevin,  617,  618. 

in  actions  on  sales,  619. 

what  may  be  shown  in  action  based  on  statute  or  ordinance,  573. 

in  actions  on  tax-bills,  620. 

in  actions  for  trespass,  621. 
GUARANTOR,  of  what  defenses  he  may  avail  himself,  658. 

counter-claim  in  favor  of,  657,  658. 

reply  charging  defendant  as,  776. 
GUARANTY,  pleading,  117. 

petition  in  action  on,  337,  390. 

distinct,  must  be  stated  in  separate  counts,  218. 
GUARDIAN,  pleading  appointment  of,  173. 

questioning  appointment  of  under  general  denial,  602. 

counter-claim  in  actions  by  or  against,  649,  650. 

when  failure  of  to  give  bond  may  be  reached  by  demurrer,  827. 
HEAD  OF  FAMILY,  pleading,  128,  140,  442. 
HEIR  OR  DISTRIBUTEE,  counter-claim  against,  649. 
HEIRS,  joining  with  legal  representative,  257. 

pretermitted,  bill  to  establish  rights  of,  493. 

pretermitted,  general  denial  in  action  by,  59S. 
HOLIDAYS,  counted  for  pleading,  46. 
HOMICIDE,  action  for,  effect  of  general  denial,  601. 
HUSBAND  AND  WIFE,  action  by,  253. 

action  between,  391. 

legal  and  equitable  remedies,  20. 

suit  to  charge  separate  estate  of  wife,  955. 

amending  bill  in  equity  in  suit  between,  998. 

amending  petition  to  charge  separate  estate,  969. 

alienating  affection  of,  137. 

action  for  tort  of  wife,  294. 

ejectment  against,  386. 

replevin  for  wife's  property,  461. 

misjoinder  of,  as  parties,  836. 

changing  husband  from  party  defendant  to  party  plaintiff,  943. 

when  either  may  be  added  as  plaintiff,  954. 

marriage  after  suit,  husband  may  be  added  as  plaintiff,  954. 

husband  may  be  made  party  by  interlineation,  950. 
Mo.  Code  Pi*— 35 


546  INDEX. 

ILLEGALITY,  pleading,  151-161. 

pleading  in  defense,  701. 

as  a  defense,  constitutes  new  matter,  625. 

showing  under  general  denial,  577-583. 
IMPLICATION,  from  facts  averred,  271. 
IMPLIED  FACTS,  pleading,  34,  115,  143. 
IMPLIED  PROMISE,  necessity  of  averring,  34. 
INCONSISTENCY,  in  prayer  for  relief,  314. 
INCONSISTENT  AVERMENTS,  in  petition,  284, 

See  also  Petition. 
INCONSISTENT  DEFENSES.    See  Answer;  Defenses. 
INDEBTEDNESS,  alleging,  392. 

denial  of,  190,  541. 

admission  of,  after  a  general  denial,  188. 
INDIGNITIES,  alleging,  in  suit  for  divorce,  383. 
INDORSEE,  action  by,  353. 
INDORSEMENT,  pleading,  353. 

pleading  consideration  for,  349. 
INDORSER,  action  against,  353,  354 
INDUCEMENT,  alleging  contract  as,  370. 

where  there  are  several  counts,  234,  235. 
INFANCY,  issue  of,  raised  by  general  denial,  602. 
INFANT,  suit  by,  515. 

suit  by,  failing  to  allege  appointment  of  guardian  or  next  friend,  817. 

petition  by,  246,  250. 

defect  in,  cured  by  verdict,  887. 
INFERENCE,  from  facts  averred,  62. 

in  actions  for  slander,  90. 

contrary  to  facts  pleaded,  127. 
See  also  Facts. 
INFERRING  FACTS,  from  facts  pleaded,  109. 

contrary  to  those  pleaded,  127. 
INJUNCTION,  bill  for,  141,  484,  485. 

in  action  for  nuisance,  314.      • 

in  action  for  nuisance  or  other  trespass,  23. 

against  nuisance,  joined  with  action  for  damages,  215. 

amending  after  dissolution  of,  1004. 
INJURIES,  to  person  and  to  property,  one  cause  of  action,  215. 

action  for,  combined  with  action  on  contract,  222. 

action  for,  by  employee,  408-410. 

to  minor,  pleading  special  damages,  329. 

to  the  reversion,  action  for,  480. 
INJURIES  TO  REALTY,  in  action  for,  stating  measure  of  damages,  319. 

to  the  reversion,  480. 
INNOCENT  PURCHASER,  pleading,  116. 

allegations  as  to,  in  petition,  702. 
INNUENDO,  in  slander  or  libel,  466-471. 
INSANE  PERSON,  bill  to  set  aside  deed  of,  488. 

answer  of  guardian,  547. 

counter-claim  in  action  by  guardian,  650. 


THE   REFERENCES   ARE   TO   THE    SECTIONS.  547 

INSOLVENCY,  as  a  ground  of  equitable  set-off,  641. 

INSTRUCTION,  may  be  given  after  amendment,  993. 

INSTRUMENT,  bill  to  set  aside,  488. 
written,  declaring  on,  134. 

need  not  be  declared  on  as  such,  372. 

pleading  legal  effect  of,  144,  145. 

setting  forth  in  hcec  verba,  144-150,  285. 
what  must  be  filed  as  exhibit,  495. 
denying  execution  of,  547,  684. 
denial  under  oath,  objection  waived,  873. 
general  denial  in  action  on,  590. 
lost,  action  on.  49S. 
defense  based  on  lost,  724. 
lost,  petition  in  action  on,  338. 

answer  in  action  on,  338. 
See  also  Written  Instrument. 

INSURABLE  INTEREST,  alleging,  395. 

INSURANCE,  action  on  oral  contract  for,  143,  393. 
reforming  contract,  23. 

INSURANCE  POLICY,  petition  in  action  on,  287,  296,  299,  392-397. 
alleging  that  amount  is  due,  922. 

defective  petition  in  action  on,  cured  by  verdict,  887,  919-923. 
action  on,  presumptions,  187. 
reforming,  in  action  at  law  for  recovery,  23. 
answer  in  action  on,  727. 
several  defenses  to  action  on,  530. 
general  denial  in  action  on,  591. 
action  upon,  new  matter  in  answer,  758. 
showing  waiver  in  actions  on,  106. 
the  policy  as  an  exhibit,  502. 

INTEREST,  must  be  demanded,  316,  393. 

INTERPLEA,  what  it  must  show,  781. 

misjoinder  or  non-joinder  of  parties  in,  834. 

made  by  cestui  que  trust,  trustee  may  be  substituted,  954. 

in  the  nature  of  a  replevin  suit,  580,  582. 

verifying,  42,  43,  783. 

demurrer  to,  826. 

answer  to,  782. 

IRREGULARITY,  cured  by  verdict,  899. 

ISSUES,  raised  only  by  the  pleadings,  35,  76,  77. 
of  fact  and  of  law,  35. 
of  law  and  fact,  raising  at  same  time,  512. 
of  law  and  fact  upon  different  parts  of  the  pleadings,  35. 
when  to  be  treated  as  properly  raised,  874 
changing,  35. 

cannot  be  enlarged  by  evidence  or  instructions,  35. 
objection  as  to,  waived  by  going  to  trial,  874. 
misjoinder  cured  by  jeofails,  886. 


548  INDEX. 

JEOFAILS,  imperfections  cured  by,  250. 
defects  cured  by,  797,  817. 
failure  to  state  venue  cured  by,  245. 
failing  to  sign  pleading,  cured  by,  41. 
See  also  Statute  of  Jeofails. 

JOINDER,  of  parties,  261,  262. 

of  parties,  heir  and  legal  representative,  257. 
of  plaintiffs  in  replevin,  618. 
of  causes  of  action,  214  et  seq.,  261,  262. 
of  causes,  must  belong  to  same  class,  227. 
improper,  of  causes  of  action,  effect  of,  222. 
of  legal  and  equitable  causes,  229. 
must  be  separately  stated,  230,  231. 
improper,  cured  by  verdict,  228. 
See  Misjoinder;  Non-joinder. 

JUDGMENT,  pleading,  175,  273. 

petition  in  action  on,  143,  399. 

time  for  pleading  in  actions  on,  47. 

answer  iu  action  on,  728. 

of  sister  state,  plea  to  the  jurisdiction,  703. 

on  the  pleadings,  213. 

on  the  pleadings,  motion  for,  802. 

ou  demurrer,  846. 

amending  after  judgment,  1001. 

bill  to  review,  400. 

answer  in  proceeding  to  revive,  728. 

proceeding  to  vacate,  832. 

informality  in,  cured  by  jeofails,  886. 

restraining  collection  of,  485. 

in  ejectment,  when  a  bar,  536. 

on  demurrer  to  second  amended  petition,  not  a  bar,  952. 
JUDICIAL  NOTICE,  matters  of,  need  not  be  pleaded,  131. 
JURISDICTION,  pleading,  399. 

special,  how  pleaded,  273. 

of  United  States  court,  pleading,  273. 

question  of,  how  raised,  518,  523. 

questioning,  by  general  denial,  569. 

pleading  want  of,  703. 

plea  in  abatement  for  want  of,  738. 

plea  to,  joined  with  the  merits,  743. 

of  subject-matter,  cannot  be  waived,  868. 

cannot  be  conferred  by  amendment  of  pleading,  945. 
JURISDICTIONAL  FACTS,  stating  in  suits  for  divorce,  383. 
JUSTICES'  COURTS,  rules  as  to  joining  causes  of  action  different  from  those 

in  circuit  court,  227. 
JUSTIFICATION,  pleading,  528. 

plea  of,  is  new  matter,  757. 

showing,  under  general  denial,  568. 

joined  with  general  denial,  549,  550. 

pleading,  in  actions  for  slander  or  libel,  732,  733. 

in  actions  for  trespass,  735. 


THE    REFERENCES    ARE   TO   THE    SECTIONS.  549 

LACHES,  pleading  excuse  for,  292. 

LAND,  action  against  railroad  for  appropriating,  459. 

LANDLORD  AND  TENANT,  petition  in  action  between,  401,  402. 

answer  in  actions  between,  729. 

general  denial  in  actions  between,  603. 

LAW  AND  EQUITY,  bow  far  distinct,  1. 

tbe  distinction  as  to  principles  not  abolished,  3. 

See  also  Equity;  Actions;  Forms;  Equitable  Defense;  Equitable 
Relief. 

LAWS,  pleading,  165  et  seq. 
foreign,  pleading,  169. 
pleading  amended,  168. 

LEASE,  answer  to  action  on  covenants  of,  729. 

LEAVE,  to  file  pleading,  54 

LEGAL  AND  EQUITABLE  CAUSES,  joinder  of,  229. 

must  be  separately  stated,  230,  231. 
LEGAL  AND  EQUITABLE  PROCEEDINGS,  alleging  fraud,  157. 
LEGAL  EFFECT,  pleading,  115,  143,  145,  285. 

pleading,  of  written  instrument,  134. 
LEGAL  REPRESENTATIVE,  petition  in  action  by  or  against,  336. 

counter-claim  in  actions  by  or  against,  649-651. 

bill  to  set  aside  settlement  of,  483. 

waiving  statute  of  limitations,  706.  708. 

pleading  that  funds  were  stolen,  721. 
LEGAL  RIGHTS,  in  same  proceeding  with  equitable,  16. 
LEGATEE,  counter-claim  against,  649. 
LIABILITY,  not  put  in  issue  by  a  general  denial,  555. 
LIBEL,  petition  in  action  for,  462-472. 

Consult  also  Slander. 
LIEN,  on  boat,  effect  of  amending  petition,  944 
LIMITATIONS,  pleading  statute  of,  122, 179,  185. 

anticipating  defense  of,  292. 

effect  of  amending  petition,  1007. 

amending  so  as  to  interpose,  985. 

amending  pleadings  to  save  the  bar,  942,  971. 
LIVE-STOCK,  amending  petition  in  action  for  injury  to,  981. 
LOST  INSTRUMENT,  action  on,  351. 

defense  based  on,  724 
LOST  PLEADING,  how  restored,  58. 
MALICE,  pleading,  176, 177,  335. 

alleging,  in  action  for  malicious  prosecution,  403. 

in  actions  for  slander,  465.  • 

MALICIOUS  ATTACHMENT,  petition  in  action  for,  404 

defective  petition,  924 
MALICIOUS  PROSECUTION,  petition  in  action  for,  291,  40a 

general  denial  in  actions  for,  606. 
MALPRACTICE,  petition  in  action  for,  405. 
MANDAMUS,  rule  as  to  pleading  condition  precedent,  163. 


550  INDEX. 

MARRIAGE,  action  for  breach  of  promise,  406. 

defective  petition  in,  914. 
MASTER  AND  SERVANT,  action  on  breach  of  contract,  election  in,  864. 

petition  in  action  for  services,  407. 

answer  in  action  for  services,  731. 

answer  in  action  for  discharge,  731. 

reply  in  action  for  discharge,  761. 

assumption  of  risks  by  servant  must  be  pleaded,  622. 

action  against  master  for  act  of  servant,  411. 

liability  of  master  for  act  of  servant,  616. 

joining  causes  of  action  against  master,  214 
MECHANIC'S  LIEN,  petition  to  enforce,  124,  139,  412-414. 

defective  petition  cured,  925. 
aided  by  answer,  8S2. 

amending  petition,  978. 

name  of  contractor  may  be  corrected,  955. 

amending  petition  to  save  special  statute,  944. 

adding  parties  defendant  in,  955. 

pleading  and  proof  in,  95. 

answer  in  action  to  enforce,  723,  730. 

general  denial  in  action  to  enforce,  608. 

what  may  be  shown  under  a  general  denial,  560. 

different  defenses  to  action,  535. 

counter-claim  or  set-off  in  actions  on,  659. 

action  on,  joined  with  suit  to  charge  separate  property  of  married  woman, 
231. 
MINOR,  action  for  injuries  to,  435,  436. 

action  for  selling  liquor  to,  385. 

changing  parties  in  action  for  death  of,  971. 

substituting  as  plaintiff  in  action  brought  by  guardian,  960. 
MISJOINDER,  of  parties  or  causes,  514 
MISJOINDER  OF  CAUSES,  demurrer  for,  812,  829,  831,  835,  836. 

when  multifarious,  255. 

waived  by  pleading  over,  871. 

motion  to  elect  between  causes,  860  et  sea. 

cured  by  verdict,  228. 

cured  by  jeofails,  886. 
MISJOINDER  OF  PARTIES,  who  may  demur,  812. 

plea  in  abatement,  738. 

objection  to,  blended  with  matter  of  defense,  834. 

defect  cured,  797. 
MISNOMER,  plea  in  abatement  for,  736. 

effect  of  sustaining  plea  in  abatement,  739. 
MISSPELLING,  does  not  vitiate  a  pleading,  790. 
MISTAKE,  notice  of,  defectively  pleaded,  904 

bill  to  correct,  486. 

correcting,  and  then  giving  effect  to  instrument,  17. 

setting  up  as  a  defense,  537. 

as  an  equitable  defense  to  an  action  at  law,  27. 

clerical,  cured  by  verdict,  901. 

cured  by  jeofails,  886. 


THE   REFERENCES   ARE   TO   THE    SECTIONS.  551 

MITIGATION,  matter  in,  must  be  pleaded,  622. 

of  damages,  showing  under  general  denial,  613. 
MONEY  HAD  AND  RECEIVED,  petition  for,  344. 

necessary  to  aver  promise,  34. 
MORTGAGE,  petition  to  foreclose,  415,  416. 

defective  petition,  926. 
aided  by  answer,  883. 
cured  by  verdict,  904. 

statutory  foreclosure,  joined  with  equitable  relief,  20. 

foreclosure,  notes  must  be  filed,  501,  510. 

different  actions  on  several  notes,  747. 

praying  for  foreclosure  in  reply,  772. 

bill  to  set  aside  foreclosure,  487. 

bill  to  set  aside  sale,  489. 

damages  for  failure  to  acknowledge  satisfaction,  216. 
MORTGAGEE,  bill  for  account,  481. 
MORTGAGOR,  bill  for  account,  481. 
MOTION,  raising  objections  by,  793. 

time  of  filing,  789. 

when  it  relates  back,  795. 

in  nature  of  demurrer,  795. 

when  governed  by  the  rules  as  to  demurrers,  795. 

when  it  takes  place  of  answer,  517. 

to  dismiss,  waived  by  answer,  512. 

for  judgment  on  the  pleadings.  802. 

formal  disposition  of,  not  always  necessary,  805. 

sustained,  amending  the  pleading,  987. 
MOTION  IN  ARREST,  what  defects  it  reaches,  830. 

will  not  reach  defects  cured  by  verdict,  891. 

will  not  He  for  duplicity,  855. 
MOTION  TO  DISMISS,  confesses  truth  of  allegations,  795. 
MOTION  TO  ELECT,  time  of  making,  789. 

when  not  too  late,  514. 

one  cause  of  action  in  several  counts,  862. 

where  causes  of  action  are  improperly  united,  860. 

where  the  counts  are  inconsistent,  861. 

between  defenses,  863. 

overruling,  cured  by  verdict,  876. 
MOTION  TO  MAKE  DEFINITE,  when  it  lies,  793. 

when  proper,  849,  895. 

in  case  of  answer,  898. 

statutory  provisions,  848. 

not  always  necessary,  848,  851. 

when  it  is  unnecessary,  851. 

insufficient  allegation  of  damages,  850. 

what  it  must  show,  852. 
MOTION  TO  STRIKE  OUT,  when  it  lies,  771,  854. 

time  of  filing,  789,  858. 

what  defects  it  reaches,  855. 

where  amended  petition  changes  cause  of  action,  872. 

duplicity,  855. 


552  INDEX. 

MOTION  TO  STRIKE  OUT,  contimied. 

mingling  defense  on  the  merits  with  counter-claim,  855. 

departure,  854. 

new  matter,  799. 

equivalent  to  demurrer,  795. 

treated  as  a  demurrer,  792. 

must  be  in  writing,  857. 

must  be  specific,  857. 

part  to  be  reached  must  be  set  out  in  full,  857. 

admits  facts  well  pleaded,  795,  856. 

disposition  of,  859. 

overruling,  859. 

if  erroneously  sustained,  defendant  must  stand  upon  his  exceptions,  859. 

MULTIFARIOUSNESS,  a  defect  under  the  Code,  254. 

defined,  255,  257,  258. 

statutory  provisions,  256. 

averments  to  be  considered,  and  not  the  prayer,  259. 

who  may  raise  the  objection,  260. 

illustrative  cases,  261,  262. 
MUNICIPAL  CORPORATION,  petition  in  suit  by  or  against,  417-420. 

defective  petition  against,  cured  by  verdict,  904. 

pleading  statute  creating,  167. 

pleading  incorporation,  417. 

pleading  acts  done  by,  121. 

pleading  ordinance  of,  121,  129,  135,  170-172. 

action  for  violation  of  ordinance  of,  426. 

action  by,  for  taxes,  474. 

proceeding  to  open  street,  etc.,  303. 

restraining  vacation  of  street,  484. 

action  against,  for  lowering  grade,  477. 

action  against,  for  malicious  prosecution,  403. 

MUTUALITY,  in  counter-claim  or  set-off,  defined,  647. 
NAME,  setting  forth  both  christian  and  surname,  239. 
of  party,  amended  by  interlineation,  950. 

NAMES,  of  parties  in  caption,  244. 

See  also  Parties. 
NEGATIVE  ALLEGATIONS,  proof  of,  103. 
NEGATIVE  AVERMENTS,  pleading,  72. 
NEGATIVE  PREGNANT,  effect  of,  206,  207,  543-545. 

in  reply,  761. 
NEGLIGENCE,  petition  in  action  on,  170,  421-434. 
defective,  aided  by  answer,  884. 
cured  by  verdict,  928. 
general  allegation  of,  421,  422. 
when  sufficient,  868. 
cured  by  verdict,  907. 
pleading  and  proof  in  actions  on,  84-87. 
action  for,  anticipating  defense,  289. 
general  denial  in  actions  for,  609. 
what  may  be  shown  under  general  denial,  553. 


THE   REFERENCES   ARE   TO   THE   SECTIONS.  553 

NEGLIGENCE,  continued. 

contributory,  pleading,  437. 

in  action  for,  what  amendment  changes  cause  of  action,  961,  966. 

striking  out  defendants  in  action  for,  961. 

NEW  MATTER,  what  constitutes,  624,  625. 
mode  of  pleading,  623. 
must  confess  and  avoid,  626. 
in  answer,  622. 
what  must  be  replied  to,  754. 
pleading  in  reply,  763. 
defective  pleading  of,  764 
objection  to,  how  raised,  799. 
illustrations  of,  756-758. 
accord  and  satisfaction,  757. 
in  action  upon  policy  of  insurance,  758. 
plea  of  justification  is,  757. 
plea  of  payment,  756. 

NEXT  FRIEND,  averring  appointment,  515. 

questioning  appointment  of,  under  general  denial,  602. 

NON  EST  FACTUM,  facts  admitted  by  plea,  205. 

NOTICE,  pleading,  in  petition  and  answer,  702. 

manner  of  pleading,  734. 

alleging  in  action  on  insurance  policy,  393. 

pleading  in  action  against  surety,  142,  734. 

defectively  pleading  notice  of  mistake,  904. 

NUISANCE  petition  in  action  for,  438,  439. 

continuing,  action  for,  439. 

permanent  and  temporary,  one  action  for,  232. 

bill  to  restrain,  402. 

in  action  for,  prayer  for  injunction,  215,  314. 

action  for,  joined  with  injunction,  23. 
OBJECTING  TO  INTRODUCTION  OF  EVIDENCE,  where  petition  is  only 

formally  defective,  894. 

See  Demurrer;  Defects  Waived. 
OFFICERS,  petition  in  action  by  and  against,  173,  252,  440. 

action  by,  against  city,  419. 

general  denial  in  action  against,  610. 

pleading  jurisdiction  of,  175,  273. 
OFFICIAL  BOND,  action  on,  288,  302,  312. 

pleading  discharge  from,  734. 
ORDINANCE,  pleading,  121,  135,  170-172. 

pleading,  when  merely  evidentiary,  129,  170. 

action  for  failure  to  comply  with,  453,  800. 

action  for  violation  of,  426. 

attacking,  under  general  denial,  573. 
OUSTER,  alleging  in  ejectment,  386. 
OWNERSHIP,  pleading,  111,  115,  118. 

of  note,  pleading,  347,  353,  720. 

alleging,  in  action  for  conversion,  377. 

allegation  of,  in  action  on  insurance  policy,  394,  921. 


55  I  INDEX. 

OWNERSHIP,  continued. 

showing,  under  general  denial,  559. 

defective  averment  of,  cured  by  verdict,  906,  921. 
PARTIES,  naming,  66,  246. 

names  of,  in  caption,  244. 

name  of,  in  amended  petition,  244. 

showing  interest  of,  253. 

6tating  character  in  which  party  sues  or  is  sued,  250. 

suing  or  being  sued  in  more  than  one  capacity,  228. 

plea  in  abatement  for  misnomer,  736. 

dismissal  as  to,  after  change  of  venue,  983. 

misjoinder  or  non-joinder,  834. 

improper,  demurrer  for,  833. 

defect  of,  plea  in  abatement  for,  738. 

misjoinder,  plea  in  abatement  for,  738. 

misjoinder  of,  defect  waived,  797. 

unnecessary,  defect  waived,  867. 

defect  in,  cured  by  verdict,  911. 

defect  of,  in  case  of  partners,  870. 

misjoinder,  in  case  of  partners,  870. 

changing  by  amendment,  943. 

when  plaintiffs  may  be  added,  954. 

when  defendants  may  be  added,  955. 

when  a  plaintiff  or  defendant  may  be  dropped,  956. 

when  one  may  be  substituted  for  another,  957. 

adding  or  substituting  at  trial,  989. 

unnecessary  plaintiff  dropped  by  amendment,  1001. 

correcting  names  of,  957. 

striking  out  name  of,  956. 

bringing  in  those  subsequently  becoming  interested,  983. 

becoming  interested  after  suit  brought,  made  defendant,  955. 

to  mechanic's  lien,  adding  defendant,  955. 

amendment  where  corporation  or  individuals  are  parties,  971. 

adding  or  striking  out  by  interlineation,  950. 
PARTITION,  suit  brought  in  wrong  county,  740. 

petition  in,  246. 

defective  petition  aided  by  answer,  882. 

pending,  another  petition  filed,  747. 

as  alternative  of  divesting  title,  25. 

when  demurrer  will  lie  in  suit  for,  838. 

joined  with  other  remedies,  22. 

changing  to  action  of  ejectment,  976. 

pending,  another  petition  filed,  747. 
PARTNERSHIP,  pleading  in  matters  affecting,  336. 

action  by  or  against,  248,  249,  446. 

failure  to  formally  allege,  894. 

individual  names  set  out  in  the  petition  by  amendment,  971. 

misjoinder  of,  question  how  raised,  870. 

after  dissolution,  287. 

service  by  publication  against,  249. 

note  to,  petition  on,  352. 

petition  in  accounting  between,  340. 

action  by,  on  note,  answer  to,  543. 


THE    REFERENCES    ARE   TO    THE   SECTIONS.  555 

PARTNERSHIP,  continued. 

affidavit  to  denial  of,  694. 

counter-claim  in  action  by  or  against,  654-656. 

reply  in  suit  for  an  accounting,  778. 
PARTY.    See  Parties. 
PASSENGER,  action  by  or  against  carrier,  367,  368. 

amending  petition  in  action  for  loss  of  trunk,  980. 
PAYING  MONEY  INTO  COURT,  when  required,  487. 

in  case  of  interplea,  781. 
PAYMENT,  must  be  pleaded,  622. 

mode  of  pleading,  716. 

plea  of,  not  a  counter-claim,  639. 
when  new  matter,  756. 

cannot  generally  be  shown  under  general  denial,  611,  612. 

what  facts  may  be  shown  under  general  denial.  558,  561. 

showing  under  general  denial  when  unnecessarily  alleged  in  petition, 
565,  566. 

showing  under  general  denial  in  reply.  558. 

demand  of,  defectively  alleged,  910. 

defense  of,  joined  with  other  defenses,  529. 

pleading  in  bar  of  a  bond,  721. 

reply  to  plea  of,  756. 
PENALTY,  petition  to  recover,  447,  448. 

stipulated  for  in  contract,  action  for,  448. 

action  against  railroad  to  recover,  457. 

counter-claim  in  action  for,  670. 
PERFORMANCE,  pleading,  83. 

petition  failing  to  allege,  aided  by  answer,  885. 

partial,  how  pleaded  as  a  defense,  537. 

waiver  of,  must  be  pleaded,  104. 

waiver  of,  need  not  be  alleged  in  petition,  286. 
PERFORMANCE  OF  CONDITION  PRECEDENT,  pleading,  162,  163. 
PERSONAL  INJURIES,  statutory  action  for,  274, 

action  by  employee,  428,  429. 

to  minor,  action  for,  435,  436. 

action  for,  against  railroad,  452,  453. 

action  against  city,  420. 

damages  in,  324-329. 

stating  quantum  of  damages,  330. 

pleading  loss  of  time  and  earnings,  325-328. 

general  denial  in  actions  for,  613. 

setting  aside  release  of,  24. 

See  also  Defects  Waived;  Petition. 
PETITION,  general  rules  governing.  238. 

statutory  provisions  governing,  243. 

distinction  between,  in  law  and  in  equity,  4. 

in  equity,  240. 

amending,  994. 

between  husband  and  wife,  amending,  998. 

demurrer  to,  809. 

(See  also  Demurrer.) 


556  INDEX. 

PETITION,  continued. 

form  of  petition,  242. 

the  caption,  2-14,  250. 

amending  caption,  991. 

sufficiency  of  petition,  238. 

test  of  sufficiency,  277. 

must  show  existing  cause  of  action,  267.  • 

certainty  in,  268. 

averments  must  be  consistent,  284. 

its  allegations  must  all  be  taken  together,  283. 

alleging  information  or  belief,  264. 

facts  should  be  stated,  263. 

mode  of  stating  the  facts,  264. 

what  facts  are  constitutive,  270. 

alleging  evidential  facts,  270. 

facts  inferable  from  facts  stated,  276. 

facts  raised  by  legal  implication,  271. 

pleading  the  legal  effect,  285. 

negativing  affirmative  matter,  73,  293,  294. 

anticipating  defense,  286-292. 

unnecessary  averments  in,  278,  279. 

when  unnecessary  averments  must  be  proved,  282. 

when  not  necessary  to  prove  all  the  allegations,  97. 

unnecessarily  limiting  the  issues,  282. 

what  averments  in,  must  be  traversed,  523. 

the  ad  damnum  clause,  when  necessary,  272. 

stating  the  damages,  317. 

stating  general  and  special  damages,  320. 

stating  the  measure  of  damages,  319. 

demanding  interest,  316. 

when  fatally  defective,  277. 

only  two  defects  which  are  fatal,  826. 

defects  in  petition,  how  waived,  513. 

objection  as  to  indefiniteness  waived,  873. 

defects  in,  cured  by  agreed  statement,  791. 

insufficient  averment  in,  aided  by  answer,  881-885. 

though  fatally  defective,  881. 
defective,  may  be  supplemented  by  answer,  269. 
defect  in,  cured  by  verdict,  794. 
curing  defect  in,  by  reply,  752. 
amending  before  answer  is  filed,  985. 
original  and  amended,  not  separate  actions,  1005. 
amended,  alleging  facts  subsequently  occurring,  267. 
supplemental,  what  it  may  contain,  983. 
supplemental  with  original,  not  allowed  under  the  Code,  949. 
amending,  so  as  to  retain  lien  on  boat,  944 

to  save  bar  of  limitation,  943,  944. 
amended,  answer  to,  524. 

(See  also  Amended  Pleading.) 
on  statutory  cause  of  action,  274. 

in  action  for  failure  to  comply  with  statute  or  ordinance,  453-456. 
in  assumpsit,  343. 
for  assault  and  battery,  342. 


THE   REFERENCES   ARE   TO   THE   SECTIONS.  557 

PETITION,  continued. 

in  action  on  accident  policy,  396. 

on  account  stated,  339. 

to  enforce  an  arbitration  and  award,  341. 

in  action  on  benefit  certificate,  397. 

in  action  on  bills  and  notes,  346-359. 

in  action  on  bond,  360-3G4 

for  breach  of  promise  of  marriage,  406. 

in  actions  against  carriers,  365-368. 

where  there  is  a  condition  precedent,  297-304. 

averments  as  to  condition  subsequent,  286. 

in  action  on  contract,  369-376. 

in  actions  for  conversion,  377. 

in  action  by  or  against  corporation,  379. 

in  action  for  breach  of  covenant,  380. 

in  action  under  damage  act,  435,  436. 

in  suit  for  divorce,  383. 

for  admeasurement  of  dower,  384 

in  action  against  dram-shop  keeper,  385. 

in  action  of  ejectment,  386,  387. 

in  actions  against  judges  of  election,  388. 

in  proceeding  to  enforce  escheat,  389. 

charging  fraud,  333,  334 

in  action  on  guaranty,  390. 

in  actions  between  husband  and  wife.  391. 

averments  as  to  innocent  purchaser,  702. 

in  action  on  insurance  policy,  392-397. 

in  action  on  judgment,  399. 

averring  jurisdictional  facts,  273. 

in  action  between  landlord  and  tenant,  401,  402. 

in  suit  on  lost  instrument,  338. 

in  action  for  malicious  prosecution,  403. 

in  action  for  malicious  attachment,  404 

charging  malice,  335. 

in  action  for  malpractice,  405. 

in  mechanic's  lien  suit,  412-414 

in  proceeding  to  foreclose  mortgage,  415,  416. 

for  money  had  and  received,  344. 

in  suits  by  or  against  municipal  corporations,  417-420. 

in  actions  on  negligence,  421-434. 

pleading  contributory  negligence,  437. 

averment  as  to  notice,  702. 

in  action  for  nuisance,  438,  439. 

in  actions  by  and  against  officers,  419,  440. 

in  actions  on  official  bonds,  441-445. 

in  suits  involving  partnership,  446. 

in  proceeding  to  recover  a  penalty,  447,  448. 

in  actions  between  principal  and  agent,  449. 

pleading  proviso  or  exception,  295,  296. 

in  actions  on  public  securities,  451. 

on  quantum  meruit,  375. 

in  actions  against  railroad  companies,  452-459. 


558  INDEX. 

PETITION,  continued. 

in  actions  of  replevin,  460,  461. 

by  one  in  representative  capacity,  238. 

in  action  for  services,  407. 

in  action  for  slander  or  libel,  462-472. 

for  slander  of  title,  472. 

in  action  on  special  tax-bill,  475,  476. 

in  actions  between  sureties,  450. 

in  action  for  delinquent  taxes,  473,  474. 

in  action  for  a  tort,  477. 

in  action  for  trespass,  478. 

action  for  trespass  for  mesne  profits,  479. 

for  use  and  occupation,  345. 

in  action  for  breach  of  warranty,  381. 

in  action  for  waste,  480,  483. 
PHYSICIAN,  action  for  malpractice  against,  405. 
PLAINTIFF,  showing  want  of  capacity  to  sue,  567. 

legal  capacity  to  sue,  plea  in  abatement  for,  738. 

incapacity  to  sue  raised  by  answer,  796. 

incapacity  to  sue  raised  by  demurrer,  817. 

showing  want  of  interest  under  general  denial,  567. 

admitting  capacity  to  sue,  570. 

waiving  question  as  to  capacity  or  character  of,  515,  742. 

pleading  in  the  alternative  by,  71. 

when  he  must  reply,  49. 

non-joinder  in  replevin,  618. 

when  striking  out  name  changes  cause  of  action,  956. 

when  new  plaintiff  may  be  added,  954. 

when  a  cestui  que  trust,  trustee  may  be  added,  954. 

may  be  added  in  replevin,  954. 

adding  after  original  petition,  872. 

substituting  members  of  unincorporated  society  for  the  society,  943. 

unnecessary,  dropped  by  amendment,  1001. 

suing  jointly,  one  cannot  be  dropped,  956. 

unless  unnecessary  and  made  party  through  inadvertence,  956. 
PLEA  IN  ABATEMENT,  the  rule  at  common  law  and  under  the  Code,  736. 

a  dilatory  plea,  737. 

what  it  must  show,  738. 

must  give  plaintiff  better  writ,  736. 

joined  with  plea  to  the  merits,  741-745. 

for  defect  of  parties,  738. 

for  want  of  jurisdiction,  738. 

plaintiff's  incapacity  to  sue,  738. 

another  action  pending,  748-748. 

effect  of,  736,  739. 

waiver  of,  737,  740-745. 

motion  to  strike  out,  795,  816. 

defect  in,  waived,  875. 

defective,  cured  by  verdict,  899. 
PLEADING,  denned,  60. 

office  of,  65,  233. 

test  of  sufficiency,  37. 


THE   REFERENCES   ARE   TO   THE   SECTIONS.  559 

PLEADING,  continued. 

to  be  determined  by  the  Code  itself,  59,  178. 

sufficiency  of,  a  question  of  law,  878. 

presenting  an  issue,  when  taken  together,  884. 

substance,  and  not  form,  regarded,  179. 

technical  rules,  64 

special,  34,  61. 

signing,  41. 

not  signed,  the  defect  is  cured  by  jeofails,  886. 

verification  of,  43,  61,  528. 

what  pleadings  are  open  to  defendant,  512. 

several  pleadings  at  same  time,  36,  517. 

only  one  of  same  character  at  same  time,  949. 

all  matters  must  be  set  forth  in  one,  949. 

when  deemed  responsive,  517. 

averments  must  be  certain,  38,  268. 

uncertain,  cured  by  evidence,  879. 

indefiniteness  in,  must  be  attacked  before  verdict,  893. 

using  figures  instead  of  words,  268. 

consistency  in,  284. 

making  unnecessary  averments,  278,  279. 

surplusage  in,  74. 

negative  averments,  72. 

negativing  affirmative  matter,  293,  294 

matter  within  the  knowledge  of  one  party,  72. 

stating  facts  upon  information  and  belief,  238. 

alternative  pleading,  70. 

facts  to  be  stated,  34 

only  ultimate  facts,  115,  116. 

facts  occurring  after  institution  of  suit,  627. 

conclusions  of  law,  131  et  seq. 

pleading  legal  effect,  143-150,  285. 

pleading  in  case  of  set-off  or  counter-claim,  673-677. 

pleading  a  condition  precedent,  297-304 

provisos  and  exceptions,  295,  296. 

pleading  where  there  are  independent  covenants,  298. 

pleading  accord  and  satisfaction,  695. 

reply  to,  757. 
pleading  appeal,  696. 
discharge  in  bankruptcy,  697. 
actual  and  exemplary  damages,  331. 
damages  in  cases  of  permanent  injury,  329. 
contributory  negligence,  712-714 
duress,  698. 
former  recovery,  699. 
statute  of  frauds,  717. 
defense  under  bankruptcy  law,  697. 
and  proof,  76  et  seq.,  233. 

in  action  for  slander,  463. 

in  case  of  answer,  523. 
rule  applies  in  equity  causes,  77. 
construction  of  pleadings,  178. 


500  INDEX. 

PLEADING,  continued. 

liberal  construction  of,  178-182. 

time  for  pleading,  45  et  seq. 

filing  out  of  time,  50. 

extending  time  for,  50. 

leave  to  file,  54. 

objection  to  time  of  filing  waived,  899. 

failure  to  serve  copy,  868. 

admissions  by,  188  et  seq. 

(See  Admissions  by  Pleading.) 
attacking,  788. 

how  objections  to  pleadings  may  be  raised,  793. 
what  defects  are  material,  790. 
defects  cured  by  jeofails,  886. 
defective  statement  cured  by  verdict,  890,  898. 
defect  in,  party  first  in  fault,  792. 

pleading  neither  aided  nor  invalidated  by  exhibit,  803. 
clerical  error  in  pleading,  790. 
pleading  not  vitiated  by  misspelled  word,  790. 
part  of,  adjudged  bad,  804 
judgment  on  pleadings,  213. 
motion  for  judgment  on,  802. 
substituting  pleading,  55. 
pleading  not  void  is  amendable,  940. 
abandoned  pleading  regarded  as  never  made,  784 

not  amendable,  940. 
when  amended,  original  pleading  abandoned,  785,  937,  1005. 

but  still  admissible  in  evidence,  785. 
where  pleading  is  ignored,  787. 
effect  of  withdrawing  pleading,  786. 
withdrawal  by  taking  leave  to  amend,  937. 
lost  or  destroyed  pleadings,  58. 
effect  of  pleading  over,  806,  871. 
pleading  over  waives  demurrer,  834 

amending  after  third  has  been  adjudged  insufficient,  987. 
voluntarily  amended  not  to  be  counted  as  one  of  the  three,  952. 
filing  instanter,  waiver  of,  872. 
PLEADING  AND  PROOF,  must  correspond,  40. 
the  rule  applies  in  equity,  77. 
See  Pleading. 
PLEADING  EQUITABLE  DEFENSE,  effect  of,  8. 

PLEADING  IN  EQUITY,  proof  must  correspond  with  the  pleading,  77. 
PLEADING  OVER,  effect  upon  defects,  806. 
waives  misjoinder  of  counts,  871. 

waives  statement  of  several  causes  of  action  in  one  count,  871. 
See  also  Pleading. 
PLEADING  STATUTE,  exception  in,  164 
POSSESSION,  alleging,  478,  479. 
PRAYER  FOR  RELIEF,  petition  must  contain,  306. 
not  a  distinct  cause  of  action,  306. 
different  kinds  of,  314 
form  of,  69. 


THE    REFERENCES    ARE   TO    THE    SECTIONS.  561 

PRAYER  FOR  RELIEF,  continued. 
certainty  in,  307. 
mistake  as  to  relief  asked,  308. 
general  and  specific,  310. 
alternative,  315. 
inconsistency  in,  314. 
demurrer  to  prayer,  828. 
stating  the  damages,  317  et  seq. 
stating  the  measure  of  damages,  319. 
all  damages  must  be  included,  321. 
general  and  special  damages,  320. 
demanding  interest,  316. 
in  bill  for  specific  performance,  12. 
in  answer,  for  equitable  relief,  9. 
effect  of,  as  determining  character  of  suit,  312. 
as  showing  multifariousness,  259. 
effect  of  improper,  308. 
equitable,  in  reply,  773. 
additional  or  different  in  reply,  772. 
changing  by  amendment,  975. 

PRESUMPTION,  in  favor  of  pleading,  185-187. 

in  favor  of  petition  not  demurred  to,  799. 

that  pleading  was  withdrawn,  805. 
PRINCIPIPAL  AND  AGENT,  petition  in  action  between,  449. 

counter-claim  or  set-off  between,  663. 
PRINCIPAL  AND  SURETY,  actions  between  sureties,  450. 

answer  in  action  against  surety,  734. 

pleading  discharge  of  surety,  734 

proving  under  general  denial  extension  to  principal,  580. 
PRIVATE  STATUTE,  pleading,  165. 
PROBABLE  CAUSE  pleading,  in  action  for  trespass,  621. 

in  action  for  malicious  prosecution,  403. 
PROCEDURE,  modes  of,  in  law  and  in  equity,  1. 

flexibility  of,  under  the  Code,  5. 
PROCESS,  defective,  question  how  raised,  523. 

defective,  cannot  be  cured  by  amending  petition,  945. 

defect  in,  cured  By  jeofails,  886. 

where  cause  of  action  against  copartnership  is  changed  to  one  against 
corporation,  957. 
PROMISE,  necessity  of  pleading,  343,  348. 

averring  in  assumpsit,  34. 
PROMISSORY  NOTE.    See  Bills  and  Notes. 
PROOF  OF  LOSS,  alleging,  in  action  on  insurance  policy,  393. 
PROVISO,  pleading,  164,  295,  296. 

pleading  in  counter-claim,  675. 

distinction  between,  and  exception,  295. 
PUBLIC  OFFICERS,  pleading  powers  of,  173. 
PUBLIC  SECURITIES,  petition  in  action  on,  288,  451. 
PUBLICATION,  amending  after,  986. 
PURCHASE  PRICE,  general  denial  in  actions  for,  619. 
Mo.  Code  Pl— 36 


562  INDEX. 

PURCHASES,  innocent,  defense  not  raised  by  general  denial,  614. 
QUANTUM  MERUIT,  action  on,  375. 

petition  in  action  by  employee,  407. 
QUIETING  TITLE,  general  denial  in  proceeding  for,  615. 
QUO  WARRANTO,  joining  plea  in  abatement  and  to  the  merits,  741. 
RAILROAD  COMPANIES,  petition  in  actions  against,  452-459. 

defective  petition  in  action  against,  929. 

general  denial  in  actions  against,  616. 

action  for  wrongful  appropriation  of  land,  459. 

bonds  issued  to,  action  on,  451. 

action  against,  for  violating  ordinance,  800. 

action  against,  for  personal  injuries,  427-429,  434. 

action  against,  by  employee,  409. 

action  for  killing  stock,  232. 

action  against,  for  taxes,  473. 

action  against,  where  road  is  leased,  458. 

action  for  failure  to  ring  bell  or  sound  whistle,  453. 

for  failing  to  fence,  454. 

for  failure  to  maintain  ditches,  455. 

for  setting  fires,  456. 

action  for  fire,  counter-claim  in,  648. 

amendment  in  action  against,  981. 

consolidated,  pending  suit,  957. 
RATIFICATION,  pleading,  174. 

another  method  of  execution,  779. 

cannot  be  shown  under  general  denial,  572. 

pleaded  in  reply,  not  a  departure,  779. 
REAL  ESTATE,  contract  for  sale  of,  action  for  breach,  376. 

RECEIVER,  right  of,  to  sue,  817. 

suit  against,  246. 

effect  of  appointment  on  set-offs  or  counter-claims,  672. 
RECOGNIZANCE,  action  on,  114. 
RECOUPMENT,  its  nature,  634. 

included  in  counter-claim,  631, 

when  not  allowed,  645. 

allowed  now,  where  not  formerly,  644 
REDEMPTION,  bill  to  redeem,  487. 

bill  for,  may  ask  for  additional  relief,  314. 
REFORMATION,  of  policy  of  insurance  in  action  at  law,  23. 

of  instrument,  joined  with  partition,  22. 
RELEASE,  procured  by  fraud,  setting  aside,  24. 

procured  by  fraud,  alleging  in  reply,  765. 
RELIEF,  statutory  provisions  as  to,  243. 

what  may  be  asked,  313. 

must  correspond  to  the  pleadings,  78. 

what  may  be  granted,  96,  109,  306. 

any  may  be  granted  which  is  consistent  with  facts  pleaded,  308. 

where  judgment  is  by  default,  311. 

prayer  for,  generally,  310. 

prayer  for,  essential,  306. 


THE    REFERENCES    ARE    TO   THE    SECTIONS.  563 

RELIEF,  continued-. 

mistake  in  prayer  for,  308. 

general  and  specific  in  same  prayer,  310. 

inconsistent  with  statement  of  facts,  310. 

different  kinds  of,  314 

alternative,  25,  70,  71,  315. 

both  legal  and  equitable,  309. 

equitable,  73,  312. 

equitable,  in  answer,  9. 

affirmative,  to  defendant,  536. 

affirmative,  when  it  should  be  asked,  313. 

affirmative,  in  answer  to  ejectment,  726. 

prayer  in  reply,  for  equitable,  312. 

as  between  defendants,  30.  • 

additional  or  different,  prayed  in  reply,  772. 

claiming  enlarged,  in  reply,  774. 

demurrer  to  prayer  for,  828. 

as  bearing  upon  demurrer,  839. 
See  also  Prayer  for  Relief. 
RENT,  claiming  additional  in  reply,  772,  774. 
REPLEVIN,  petition  in  action  for,  63,  123,  460,  461. 

pleading  conclusion  of  law  in,  135. 

pleading  special  damages  in,  322. 

alternative  relief  in,  25. 

admission  by  answer  in,  194. 

defective  petition  in,  aided  by  answer,  882. 

defective  petition  in,  cured  by  verdict,  930. 

general  denial  in,  617,  618. 

under  general  denial  showing  fraud  or  illegality,  582,  583. 

amending  in,  979. 

when  plaintiff  may  be  added  in,  954. 
REPLY,  statutory  provisions  as  to,  749. 

when  required,  750. 

what  is  new  matter,  754. 

if  not  new  matter,  reply  does  not  make  it  so,  755. 

where  new  matter  in  answer  not  a  valid  defense,  750. 

illustrations  of  new  matter  requiring  reply,  756-758. 

the  denial,  759-762. 

form  of  denial.  760. 

general  or  special  denial,  761,  762. 

what  may  be  shown  under  general  denial,  761,  762. 

time  for  filing,  49,  51. 

effect  of  failing  to  file,  749,  753. 

failing  to  file,  to  plea  of  payment,  756. 

filing  at  trial,  52. 

filing  after  appeal,  52. 

treated  as  filed,  53. 

treated  as  withdrawn,  787. 

pleading  special  damages  in,  323. 

alleging  facts  occurring  since  suit,  767,  774 

containing  prayer  for  additional  or  different  relief,  772. 

claiming  additional  damages  in,  774 


50)4  INDEX. 

REPLY,  continued. 

reply  to  amended  answer,  996. 

to  plea  of  accord  and  satisfaction,  695,  75?. 

to  counter-claim  or  set-off,  766. 

pleading  set-off  or  counter-claim  in,  676. 

equitable  defense  in,  770. 

containing  prayer  for  equitable  relief,  312,  773. 

prayer  for  foreclosure  in,  772. 

reply  or  demurrer,  751. 

joined  with  demurrer,  808. 

demurrer  to,  807. 

when  motion  to  strike  out,  should  be  overruled,  859. 

effect  of  filing,  755,  763. 

does  not  cure  defect  in  petition,  752,  880. 

defects  in,  cured  by  verdict,  898. 

cannot  serve  as  amendment  to  petition,  763. 

pleading  fraud  in,  765. 

pleading  ratification  in,  779. 

pleading  waiver  in,  107. 

pleading  new  matter  in,  763. 

defective  pleading  of  new  matter  in,  objection  how  raised,  764. 

departure,  768-770. 

instances  where  it  constitutes  a  departure,  779. 

amending  before  jury  sworn,  985. 

amending  during  trial,  985. 

amending  after  trial,  996. 
REPRESENTATIVE,  plaintiff,  averring  representative  character  of,  515. 

alleging  appointment  of,  251. 

joining  as  defendant  with  heir,  257. 

suing  at  same  time  in  individual  capacity,  defect  cured  by  verdict,  900. 
RETURN,  imperfect  or  insufficient  cured  by  jeofails,  886 
RIGHTS,  settling  all  in  one  proceeding,  15. 
SALE,  action  for  price,  777. 

action  on,  effect  of  general  denial,  563. 
SCHOOL  DISTRICT,  pleading  incorporation  of,  166, 167. 
SECURITY  FOR  COSTS,  motion  for,  does  not  suspend  filing  of  answer,  517. 
SEDUCTION,  action  for,  406. 

joining  with  action  for  breach  of  promise,  226. 
SEIZIN,  allegation  of,  386. 

SELF-DEFENSE,  may  be  shown  under  general  denial,  601. 
SERVICES,  petition  in  action  for,  407. 

answer  in  action  for,  731. 

See  Employer  and  Employee. 
SET-OFF,  its  origin  and  nature,  630,  634 

a  statutory  right,  630. 

statutory  provisions,  633. 

how  it  operates,  632. 

concedes  plaintiff's  claim,  637. 

distinction  between,  and  counter-claim,  637,  639,  643. 

included  in  counter-claim,  631. 

distinction  between,  and  recoupment,  644. 


THE   REFERENCES   ABE   TO   THE   SECTIONS.  565 

SET-OFF,  continued. 

of  mutual  debts,  630,  633. 

right  of,  in  equity,  641. 

equitable,  in  favor  of  debtor  to  estate,  651. 

demand  must  be  liquidated,  643,  646. 

demand  must  exist  at  commencement  of  action,  671. 

subject-matter  of  pending  action,  642. 

must  be  construed  with  reference  to  the  exemption  statute,  641. 

must  be  pleaded,  640. 

when  it  may  be  pleaded,  639. 

method  of  pleading,  673. 

pleading  in  reply,  676. 

reply  to,  766. 

failure  to  reply  to,  753. 

effect  of  pleading,  677. 

defeating  set-off,  678. 

mutuality  required,  647-659. 

joint  against  individual  demand,  653. 

partnership  and  individual  debts,  654 

in  case  of  surviving  partner,  655. 

as  between  principal  and  agent,  663. 

in  mechanics'  lien  cases,  659. 

how  affected  by  assignment,  672. 
See  also  Counter-claim. 
SHAREHOLDERS,  bill  in  proceeding  against,  482. 

counter-claim  in  execution  against,  680. 

SHERIFF,  bond  of,  action  on,  442. 
SIDEWALKS,  action  for  defect  in,  432. 
SIGNING  PLEADINGS,  required,  41. 
SLANDER,  pleading  and  proof  in  actions  for,  90-93. 

petition  in  action  for,  462-472. 

where  foreign  words  are  spoken,  93. 

when  should  be  stated  in  one  count,  and  when  in  several,  220. 

of  title,  petition  for,  472. 

pleading  special  damages  in,  323. 

defective  petition  in,  aided  by  answer,  885. 

defective  petition  in,  cured  by  verdict,  931. 

what  demurrer  admits  in  action  on,  821. 

answer  in  actions  for,  732,  733. 

when  defenses  are  consistent,  528. 

pleading  excuse  for,  733. 

defective  plea  of  justification  in,  898. 
SPECIAL  TAX-BILL,  petition  in  action  on,  173,  475,  476. 

action  on,  in  name  of  city,  833,  847. 

surplusage  in  action  on,  281. 

general  denial  in  actions  on,  620. 

action  on,  founded  in  contract  and  not  on  quantum  meruit,  620. 

amending,  and  then  filing  amende.!  petition,  976. 

adding  parties  in  action  on,  955. 

changing  party  plaintiff  in  action  on,  961. 

action  on,  against  married  woman,  amending  by  joining  husband,  970. 


INDKX. 

SPECIFIC  PERFORMANCE,  bill  for,  491. 

cross-bill  for,  13, 

the  prayer.  13. 

bill  for,  whioh  is  multifarious,  262. 

joined  with  accounting,  22. 

defective  petition  for,  cured  by  verdict,  932. 

pleading  condition  precedent,  304. 

setting  up  estoppel  in  reply,  778. 
STAKEHOLDER,  suit  against  by  one  claimant,  781. 
STATE,  amending  suits  in  name  of,  959. 
STATUTE,  action  for  failure  to  comply  with,  453. 

penal,  action  on,  447. 

pleading,  165. 

pleading  by  title,  166. 

pleading,  when  merely  evidentiary,  169,  170. 

pleading  compliance  with,  133. 

attacking,  under  general  denial,  573. 

invalidity  of,  not  admitted  by  demurrer,  819. 
STATUTE  OF  FRAUDS,  pleading,  717. 

raised  by  demurrer,  827. 

may  be  shown  under  general  denial,-  504,  593. 

waiver  of  the  defense,  513. 
STATUTE  OF  JEOFAILS,  to  have  a  liberal  construction,  886. 

what  amendments  are  not  authorized  by,  1002. 

what  defects  are  cured  by,  797,  817,  886. 

when  misjoinder  of  parties  and  of  causes  is  cured  by,  836. 

where  the  admission  is  one  for  which  a  demurrer  could  have  been  main- 
tained, 886,  8S& 

mistake  cured  by,  886. 

informality  in  judgment  cured  by,  886. 

cures  want  of  signature  to  pleading,  886. 

does  not  cure  failure  to  join  husband  and  wife,  970,  n.  4. 
See  also  Defects  Cured  by  Verdict. 
STATUTE  OF  LIMITATIONS,  nature  of  She  defense,  707. 

mode  of  pleading,  705,  710,  711. 

raising  by  demurrer,  832. 

pleading  as  a  defense,  704-711. 

pleading  foreign  statute,  709. 

pleading,  with  other  defenses,  531. 

joined  with  general  denial,  549,  550. 

showing  under  general  denial,  604. 

avoiding  plea  of,  605. 

reply  to  defense  of,  762. 

pleading  special  statute  in  mechanics'  lien  cases,  730. 

bar  of,  saved  by  amendment,  943. 
STATUTORY  REQUIREMENT,  when  petition  must  notice,  295. 
STOCK,  certificate  of,  action  for  improperly  canceling,  378. 
SUBROGATION,  bill  for,  492. 

of  guarantor  by  means  of  counter-claim,  658. 

SUMMONS,  insufficiency  of,  plea  in  abatement,  738. 

where  suit  is  brought  in  wrong  county,  736. 


THE    REFERENCES   AKE   TO   THE    SECTIONS.  567 

SUNDAY,  not  counted  as  pleading  day,  45. 
SURETIES,  action  between,  450. 

defective  petition  in  action  between,  cured  by  verdict,  915. 
SURETY,  charging  defendant  as,  in  reply,  776. 

counter-claim  in  favor  of,  657,  658. 
SURPLUSAGE,  effect  of,  74. 

in  prayer  for  relief,  312. 

in  answer,  75. 

as  distinguished  from  new  matter,  754. 

does  not  render  pleading  demurrable,  810. 

cannot  be  reached  by  motion  to  elect,  862. 

when  unnecessary  averments  become  essential,  278,  279, 

in  possessory  action,  allegations  as  to  title,  280. 
SURPRISE  caused  by  amendment,  946. 
TAX-BILLS,  pleading  in  action  on,  165. 

petition  in  action  on,  274. 

action  on,  by  cities  of  second  class,  286. 

action  on  bills  for  several  years,  232. 

general  denial  in  actions  on,  620. 

as  exhibits,  505,  509. 

sued  on,  amended  by  interlineation,  950. 
See  also  Special  Tax-Bill. 
TAX  DEED,  bill  to  set  aside,  488. 
TAXES,  delinquent,  action  for,  473. 

pleading  authority  to  levy,  165. 

action  for,  by  municipality,  474. 

action  for  wrongfully  levying,  444. 

defective  allegations  of  authority  to  levy,  not  cured  by  verdict,  927. 

restraining  collection  of,  485. 

restraining  disbursement  of,  485. 
TELEGRAPH  COMPANY,  action  to  recover  penalty  from,  447. 
TENDER,  when  required,  487. 

cannot  be  shown  under  general  denial,  611,  612. 
TERM  OF  COURT,  specifying,  244. 
TIME  FOR  PLEADING,  rules  governing,  45. 

extending,  50. 

See  also  Pleading. 
TITLE,  mode  of  pleading  want  of,  720. 

action  for  slander  of,  472. 

as  defense  to  an  action  for  trespass,  735. 

suit  for  divestiture,  25. 

■  vacating,  in  connection  with  ejectment,  18,  19. 
TORT,  petition  in  action  for,  477. 

cause  of  action  on,  joining  with  contract,  514. 

counter-claim  in  action  for,  664-669. 

waiving,  265. 

effect  upon  counter-claim  of  waiving,  667-669. 

actions  for,  not  interchangeable  by  amendment,  973. 

action  on,  changed  to  contract,  972. 
TOWN,  pleading  incorporation  of,  166, 167. 


568  INDEX. 

TRADE-MARK,  suit  to  enjoin,  what  demurrer  admits,  821. 
TRANSACTION,  causes  arising  out  of,  256. 

cause  of  action  arising  out  of  same,  323. 

what  is  the  same,  257. 

as  used  in  the  statute  on  counter-claim,  664. 

TRAVERSE,  what  averments  must  be  traversed,  523. 
TRESPASS,  repeated,  only  one  cause  of  action,  215. 

petition  in  action  for,  137,  478. 

action  for,  joined  with  injunction,  23. 

for  mesne  profits,  petition  in,  479. 

pleading  general  and  special  damages  in,  322. 

action  for  treble  damages,  447. 

answer  in  actions  for,  735. 

general  denial  in  actions  for,  621. 

defense  to,  562. 

statute  of  limitations  as  a  defense,  706. 

departure  in  action  for,  775. 

amending  petition,  effect  upon  limitation,  1007. 

cannot  be  changed  to  trover  by  amendment,  973. 

action  for  treble  damages  cannot  be  changed  to  single  damages,  973. 

TRIAL,  amending  at,  989. 

TROVER.    See  Conversion. 

TRUST,  enforcing,  and  making  partition,  22. 

TRUSTEE,  suit  by,  naming  beneficiary,  244. 

rule  as  to  counter-claim  against,  652. 

pleading  that  funds  had  been  stolen,  721. 

as  party  plaintiff  to  suit  by  a  cestui  que  trust,  954. 
UNITED  STATES  COURT,  pleading  jurisdiction  of,  273. 
UNKNOWN  PARTIES,  affidavit  necessary,  42. 
UNNECESSARY  AVERMENTS,  when  necessary  to  prove  them,  523. 

not  put  in  issue  by  a  general  denial,  565,  566. 
USE  AND  OCCUPATION,  petition  for,  345. 
USURY,  pleading,  142. 
VALUE,  averments  as  to,  not  traversable,  542. 

defective  statement  of,  cured  by  verdict,  905. 

does  not  apply  to  actions  on  insurance  policies,  905. 

alleging,  in  action  on  insurance  policy,  395,  919. 

VARIANCE,  a  defect  under  the  Code,  182. 

when  held  to  be  fatal,  946. 

in  pleading  legal  effect,  146. 

amending  in  order  to  avoid  variance,  989. 

between  writ  and  petition,  cured  by  jeofails,  886. 

between  the  declaration  and  the  instrument  sued  on,  cured  by  verdict,  899. 
VENUE,  stating,  245. 

stating  in  answer,  516. 

want  of,  cured  by  jeofails,  886. 

change  of,  waives  want  of  jurisdiction,  741. 

after  change,  dismissing  as  to  parties,  988. 

amending  after  change,  988. 


THE    PREFERENCES    ARE   TO   THE    SECTIONS.  569 

VERDICT,  supported  by  reference  to  caption,  244,  246. 

defects  cured  by,  270,  404,  513. 

defects  cured  by,  in  mechanic's  lien  suit,  412. 

misjoinder  cured  by,  228. 

cures  a  departure,  771. 

amending  pleadings  after  verdict,  1001. 
VERIFICATION,  of  pleadings,  when  necessary,  42. 

of  answer  to  an  action  on  written  instrument,  682  et  seq. 

when  it  may  be  supplied,  692. 
WAGER,  pleading  as  a  defense,  720. 
"WAIVER,  of  defect  in  pleading,  136,  161. 

of  objection  to  amendment,  1008. 

of  objections  by  failing  to  demur  or  answer,  513,  708. 

of  reply,  53. 

necessity  of  pleading  waiver,  104  et  seq. 

of  performance,  pleading,  297. 

method  of  pleading  waiver.  107. 

setting  out  in  petition,  286. 

cannot  be  shown  under  general  denial,  575. 

cannot  be  proved  under  general  denial  in  reply,  762. 

pleading  waiver  in  reply,  107. 

error  in  striking  out  answer,  859. 
WARRANT,  defective  petition  in  action  on,  916. 
WARRANTY,  action  for  breach  of,  294,  301,  381. 

action  on,  joined  with  action  for  deceit,  222. 

in  sale,  pleading  as  a  defense,  533. 

setting  up  breach  as  a  counter-claim,  679. 
WASTE,  petition  in  action  for,  480. 

acts  committed  after  suit  brought,  983. 
WILL,  bill  to  establish  rights  under,  493. 

suit  to  construe,  defective  petition  cured  by  verdict,  903. 

setting  out  in  hcec  verba  in  petition,  903. 
WILL  CONTEST,  non-joinder  of  parties  in,  812. 

amendment  by  joining  husband,  950. 
WRIT,  want  of,  cured  by  jeofails,  886. 
WRITTEN  INSTRUMENT,  what  constitutes  a  denial  of  execution,  681 

in  action  on,  setting  out  in  hcec  verba,  144-150. 
See  also  Instrument. 


V       *  •♦» 


*    •* 


***> 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  785  742 


OF 


PROPERTY  t 

LINCOLN 

NEW 


